2001(3) ALL MR 833
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
H.L. GOKHALE AND D.B. BHOSALE, JJ.
Bank Of Maharashtra Officers' Association Vs. Bank Of Maharashtra & Anr.
Writ Petition No.2875 of 1989
9th June, 2001
Petitioner Counsel: Shri. S.B.DESHMUKH, Shri. A.V.ANTURKAR
Respondent Counsel: Shri. R.S.PAI, Shri. GIRISH KULKARNI, Ms. RUPAL GANDHI, M/s GHANEKAR & Co., Shri. M.S.KARNIK, Shri. A.S.KHAN
(A) Constitution of India, Arts.14, 226 - "Equal pay for equal work" - Doctrine of - Applicability - Law Officers in Bank of Maharashtra - Contention that Officers recruited in years 1979, 1982 and 1983 though doing same work had unequal starting pay which violated Art. 14 - Held, there cannot be mathematical equation in manner of equal pay - In 1979 advertisement was for recruitment of Junior Officers whereas in 1982 advertisement was for post of Law Officers - Officer of 1979 batch cannot seek parity with those of 1982 batch - Contention unsustainable.
AIR 1988 SC 1291 - Rel on. (Para 13)
(B) Constitution of India, Arts.14, 226 - "Equal pay for equal work" - Doctrine of - Applicability - Law Officers in Bank of Maharashtra - Contention that Officers recruited in years 1979, 1982 and 1983 though doing same work had unequal starting pay which violated Art. 14 - Though Officers from both 1982 and 1983 batch appointed in legal department and had same minimum qualification - Held, as for 1982 batch additional expertise in field of Banking, Commercial law and Company law was required - Grant of higher starting pay to 1982 batch - Not violative of Art. 14 - Contention unsustainable - Moreover court not to interfere with evaluation of job for purpose of pay scale as done by expert bodies.
R.D.Gupta Vs. Ltd. Governor, Delhi Administration, (1987) 4 SCC 505 [Para 7]
Randhir Singh Vs. Union of India, (1982) 1 SCC 618 [Para 7]
Dhirendra Chamoli Vs. State of U.P., (1986) 1 SCC 637 [Para 7]
Tarsem Lal Gautam Vs. State Bank of Patiala, 1988 (57) FLR 746 S.C. [Para 9]
Federation of All India Customs & Central Excise Stenographers Vs. Union of India, 1988(57) FLR 258 SC - AIR 1988 SC 1291 [Para 9]
State of Andhra Pradesh Vs. G.Sreenivasa Rao, 1989 (2) LLJ Pg.143 SC [Para 9]
State of U.P. Vs. J.P.Chourasia, 1989 (58) FLR Pg. 381 SC [Para 9]
State of Haryana Vs. Jasmer Singh, (1996) 11 SCC Page77 [Para 9,11]
H.L.GOKHALE, J. :- The petitioner herein, is a registered Trade Union, and in this petition it is representing the Law Officers working under the first respondent Bank. The petition seeks to espouse the cause of the Law Officers who were appointed in the years 1979 and 1983 as against the Law Officers who were appointed in the year 1982. The principle grievance in the petition is that there is a discrimination with respect to the starting pay given to the Law Officers appointed in the years 1979 and 1983 as against the Law Officers who were appointed in the year 1982 and that there is a violation of the doctrine of 'equal pay for equal work'. The first respondent is the Bank of Maharashtra which is a nationalised Bank. The second respondent is the Union of India. Mr.Deshmukh with Mr.Anturkar has appeared for the petitioner. Mr.Pai with Mr.Girish Kulkarni has appeared for respondent no.1 and Mr.Karnik has appeared for respondent no.2.
2. Mr.Deshmukh, learned counsel appearing for the petitioner, took us through the advertisements issued for the three batches as also through the correspondence entered into by the petitioner union on behalf of the Law Officers appointed in the years 1979 and 1983. It is an admitted position that whereas the Officers appointed in the years 1979 and 1983 started on the basic pay of Rs.700/-, the Law Officers who were appointed in the year 1982 started on the basic pay Rs.860/-. This was in the pay scales of Rs.700-40-900-50-1100-EB-1200-60-1800 available to the Junior Management. For the benefit of better understanding of the controversy, it is desirable to refer to the three advertisements for the three batches.
"Bank of Maharashtra invites applications for the post of a Junior Officer knowing Labour Laws.
Minimum Qualifications : Degree in Law, Diploma in Labour management desirable.
Age : 40 years as on 30.4.1977. Upper age limit relaxable upto 45 years, in deserving cases and for members belonging to Scheduled Castes and scheduled Tribes.
Essential experience : Practice as Advocate for a Minimum period of 5 years which should include Practice in Labour Court in handling Labour matters.
Emolument : As per present rate of Dearness Allowance the monthly emoluments would be around Rs.900/-
Candidates should apply to the Divisional Manager, Staff Division, Bank of Maharashtra, 1177 Budhwar Peth, Bajirao Road Poona; 411 002 Head Office, giving the required particulars along with copies of certified testimonials within fifteen days from the date of this advertisement."
"Banking Service Recruitment Board Western Group, Bombay, c/o: Bank of India, Regent Chamber, 11th Floor Nariman Point, Bombay 400021 INVITES applications from Indian Citizens for the following categories of posts in the Officer Cadre in its participating Banks, viz. Bank of India, Bank of Maharashtra and Union Bank of India, in their various offices in India :
1. OFFICERS TO WORK IN LEGAL DEPARTMENTS :
No. of Posts : 9
(1) EDUCATIONAL QUALIFICATIONS AND EXPERIENCE AS ON 8-6-1981
(a) Solicitors of 3 years' standing, or (b) Advocates of 3 years' standing, or (c) Graduates/Post-Graduates in Law from a recognised University preferably having minimum 55 marks in LL.B or equivalent Bachelor's Degree or 50% marks in LL.M. or equivalent Post-graduate Degree and having 3 years experience in a solicitor's firm or as officers handling legal work in a financial/commercial/public undertaking or the like
(d) For (a), (b) and (c) above, candidates should preferably have knowledge and experience in Banking and Commercial Law, Company Law and also conveyancing, litigation matters and drafting of documents.
(2) AGE LIMIT AS ON 1-1-1981
Not exceeding 35 years. Relaxable by 5 years for suitable candidates having qualifications and/or experience.
(3) JOB DESCRIPTION
Candidates should be able to undertake all types of legal work including suit matters and drafting/approving documents and to give advice.
x x x x
EMOLUMENTS FOR ALL POSTS :
Total starting emoluments, inclusive of present allowances, will be around Rs.1,325/to Rs.1,525/- p.m. in the Junior Management Grade, depending upon the place of posting, except for Legal Officers posts for which total starting emoluments will be around Rs.1,800/- p.m.
Deserving candidates may be considered for higher starting salary in the grade.
Applications of candidates who have not completed 21 years of age as on 1-1-1981, will not be considered.
For further details on application format, fees, selection process, terms and conditions of appointment, etc contact within 15 days:
Banking Service Recruitment Board, Western Group, Bombay, C/o. Bank of India, Regent Chamber, 11th floor, Nariman Point, Bombay 400021."
"Banking Service Recruitment Board, Western Group Bombay C/0 Bank of India, Regent Chambers, 11th floor, Nariman Point, Bombay 400021.
Invites applications from Indian Citizens for the following categories of posts in the Officer Cadre in two of its participating Banks, namely, Bank of Maharashtra and Union Bank of India for their various Offices in India.
POST 1) Officers to work in Legal Department;
No. of Posts: 8 for Bank of Maharashtra
(1) Educational qualifications and experience (as on date of application) :
(i) Minimum Qualification :
A Degree in Law
First Class/Post-graduate degree holders will be given preference.
(ii) Experience (Desirable)
Experience as (a) Solicitor for 3 years or (b) Advocate for 3 years or (c) 3 years experience in handling legal work in a financial/commercial/public undertaking or the like.
(2) Age Limit : Not below 21 years and not above 30 years as on 1.7.1982.
(3) Job Description :
Candidates should be able to undertake all types of legal work including suit matters and drafting/approving documents and to give advice."
6. Mr.Deshmukh, learned counsel appearing for the petitioner-association, submitted that the Law Officers recruited under all the three advertisements, were doing the same and/or similar work and there was no difference as far as their performance is concerned. He drew our attention to the reply sent by the first respondent Bank to the Vice President of the petitioner-association on 9th February 1989, wherein it was accepted that the 1982 batch was given the higher starting salary of 860/-. That was defended in that letter on the ground that "that was the need of the hour and the requirement was of special qualifications." Mr.Deshmukh submitted that in his view as far as the work expected from the Officers engaged in all the three batches, there was no difference. That being so, there was no reason why the 1982 batch should have been given any preferential treatment with respect to the starting pay. He referred to the three advertisements which are quoted above for the three batches and pointed out that as far as minimum qualifications are concerned, for the 1979 batch, the qualification required was of a Degree in Law. As far as the 1982 batch is concerned, in that also the requirement was that a person has to be an Advocate of three years' standing or a Solicitor of three years' standing or a Graduate/Post-graduate in Law from a recognised University. As far as the 1983 batch is concerned, in fact, the requirement was of a Degree in Law with First Class or a Post-graduate degree holder which was to be given preference. Thus, as far as the educational qualifications are concerned, Mr.Deshmukh submits that whereas for the 1983 batch, a First Class was expected in the degree of Law, there was no such requirement for the 1982 batch. Still the 1982 batch was given a higher starting pay. Similarly, as far as the job required to be done is concerned (although the 1979 advertisement did not mention it specifically) all the Officers recruited, barring the exception of one Mr.Nizampurkar, were throughout posted in the Legal Department. This Mr.Nizampurkar was initially posted in the Staff Section but thereafter was posted in the Legal Department. With respect to experience, he submitted that the 1982 batch required experience as an Advocate of three years or experience as a Solicitor of three years. As against that, the 1983 batch also required the same experience, namely person had to be either a Solicitor for three years or an Advocate for three years. As far as the age limit is concerned, he submitted that whereas for the 1982 batch, the age limit was not exceeding 35 years (relaxable by 5 years), for the 1979 batch also it was 40 years. The submission of Mr.Deshmukh therefore was that as per this advertisement, there was not any serious difference in the requirements with respect to the education, experience and age. Besides the work done by the Officers whether of the 1979 batch or of the 1983 batch, is not much different from that of the 1982 batch. The submission of Mr.Deshmukh was that there was no reason why the 1982 batch started with a higher pay.
7. Mr.Deshmukh relied upon a few judgments of the Apex Court in this behalf. He firstly relied upon a judgment of the Apex Court in the case of R.D.Gupta Vs. Ltd. Governor, Delhi Administration, reported in (1987) 4 SCC 505 and particularly para 20 thereof. In that judgment, the Court referred the earlier judgment in the case of Randhir Singh Vs. Union of India reported in (1982) 1 SCC 618 and observed as follows :-
"This Court has held in Randhir Singh case that the mere fact that persons belong to different departments of the government cannot by itself be a sufficient circumstance to justify different scales of pay and that "where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments."
He then referred to and relied upon another judgment of the Apex Court in the case of Dhirendra Chamoli Vs. State of U.P. reported in (1986) 1 SCC 637, wherein the Apex Court has observed in the context of the persons appointed by the Nehru Yuvak Kendras, vis-a-vis the class IV employees that majority of the people take employment on whatever exploitative terms are offered by the employer but it cannot be permitted to be canvassed that whereas class IV employees appointed on regular basis are against sanctioned posts, the persons appointed in the programs like those of Nehru Yuvak Kendra were not on sanctioned posts.
8. Mr.Pai, learned counsel appearing for the respondents, on the other hand, emphasised the fact that as far as the 1979 batch is concerned, the advertisement was for the post of a Junior Officer and it was not for the post of Law Officer or for working in Legal Department as was specially stated in the advertisements for the 1982 and 1983 batches. Mr.Pai accepted that undoubtedly a Degree in Law was expected and experience as an Advocate in Labour Court was also sought. He, however, pointed out that as the example of Mr.Nizampurkar himself established that the persons concerned could be posted in other departments and Mr.Nizampurkar was, in fact, posted in the Staff Section for quite some time. The fact that these persons were subsequently brought in the Legal Department cannot, by itself, lead them to seek parity with those persons who are specifically appointed to work in the Legal Department. For that limited purpose, he accepted that there was some parity between the two batches of the 1982 and 1983, but again between the two batches there was a clear distinction when it came to the additional experience which was required when the advertisement was given for the 1982 batch. The advertisement for the 1982 batch had an additional clause (d) which stated that the candidates should preferably have knowledge and experience in Banking and Commercial Law, Company Law and also conveyancing, litigation matters and drafting of documents. Mr.Pai emphasised that for this purpose, the age limit for the 1982 batch was upto 35 years and it was relaxable by 5 years. As against that, as far as the 1983 batch is concerned, there was no such special requirement of experience in the field of Banking and Commercial Law or Company Law. The age limit for the 1983 batch, therefore, was between 21 and 30 years. Mr.Pai submitted that this was obviously because a greater experience was sought when the Law Officers were recruited in the year 1982. He, therefore, submitted that whereas the persons recruited in that 1979 batch were recruited for the post of Junior Officers and not specifically for the posts in Legal Department, those recruited in the year 1982 and 1983 batches were recruited for the Legal Department but between the two batches there was a clear distinction with respect to the additional experience which was sought for the 1982 batch and for which purpose the age limit was relaxed and higher starting pay provided. The first respondent has explained its position by filing a detailed reply.
1. Tarsem Lal Gautam & Anr. Vs. State Bank of Patiala & Ors - 1988 (57) FLR Pg. 746 S.C.;
2. Federation of All India Customs & Central Excise Stenographers & Ors. Vs. Union of India & Ors - 1988 (57) FLR Pg. 258 SC - AIR 1988 SC 1291;
3. State of Andhra Pradesh & Ors Vs. G.Sreenivasa Rao & Ors - 1989 (2) LLJ Pg. 143 SC;
4. State of U.P. & Ors Vs. J.P.Chourasia & Ors - 1989 (58) FLR PG. 381 SC.
5. State of Haryana & Ors, Vs. Jasmer Singh & Ors - (1996) 11 SCC Page 77.
Out of these judgments, the reliance on Federation of All India Customs and Central Excise Stenographers & Ors Vs. Union of India & Ors. (supra) is quite apt. In this matter, the claim of parity by stenographers attached to the heads of departments in the Customs and Central Excise Department with stenographers attached to the Jt.Secretariat and higher officers in the Ministry of Finance was rejected. In this judgment, the Court did refer to the earlier judgments in the cases of Randhir Singh as well as Dhirendra Chamoli cited by the learned counsel for the petitioner. But having noted the doctrine of equal pay for equal work, the Court expressed a note of caution in the last but one para. The Apex Court has observed therein as follows :
"The problem about equal pay cannot always be translated into a mathematical formula. If it is a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived malafide either in law or in fact."
In that very judgment, on page 264 of the above report, the Court observed as follows :
"Equal pay for equal work is fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criteria which has a rational nexus with the objection, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be negation of that right."
"14. 'Equal pay for equal work' does not mean that all the members of a cadre must receive the same pay-packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to junior would ex-facie be arbitrary, but if there are justifiable grounds in doing so the seniors cannot invoke the quality doctrine. To illustrate, when pay-fixation is done under valid statutory Rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or as incentive for efficiency, are some of the eventualities when a junior may be drawing higher pay than their seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which was rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal."
11. Mr.Pai, learned counsel for the respondents, submitted that this distinction has been continued by the Apex Court in the subsequent judgments also. In the last judgment, namely the one in the case of State of Haryana and ors. Vs. Jasmer Singh & Ors. reported in (1996) 11 Supreme Court Cases 77, in para 8, the Apex Court has observed:
"8. It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in educational or technical qualifications, which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted."
12. Mr.Pai, therefore, submitted that although the pay scale which is given to all the three batches is one and the same, namely the one notified for the Junior Management Grade, viz. 700-40-900-50-1100-EB-1200-60-1800, the batch which was recruited in the year 1982 was given four starting increments and it was allowed to start on 860 basic. This was particularly with a view to attract experienced persons in the field of Company Law and Banking who were required in that year and this was done on an uniform basis by the Banking Service Recruitment Board. Mr.Pai pointed out that the advertisement for the 1982 batch covered three nationalised Banks viz. Bank of India, Bank of Maharashtra and Union Bank of India, and the one for the 1983 batch also covered two banks viz. the Bank of Maharashtra and Union Bank of India. Mr.Pai submitted that there were uniform advertisements for these two years and since a need was felt for persons with experience in the area of Banking and Commercial Law and Company Law, a relaxation in the age was granted in the 1982 advertisement and a higher starting pay was also prescribed. That apart, between the two batches 1982 and 1983 batches, undoubtedly, the persons recruited in the year 1982 batch were senior to those recruited in the 1983 batch. As far as the recruits in the 1979 batch are concerned, they were recruited for the posts of Junior Officers and not Law Officers, although now they are also in the legal department. Hence both these batches cannot seek parity with the 1982 batch.
13. Having considered the rival submissions, we are of the view that as held by the Apex Court in the case of Federation of All India Customs and Central Excise Stenographers case (supra), there cannot be a mathematical equation in the manner of equal pay. As rightly pointed out by Mr.Pai and as seen from the advertisements, as far as the 1979 batch is concerned, the advertisement was for the posts of Junior Officers knowing Labour Laws. As against that, other two advertisements were for the posts of Law Officers in the Legal Department. As far as 1979 batch is concerned, although experience required was that of an Advocate with five years standing and a Degree in Law was a minimum qualification, the advertisement did not state that the Officers concerned were to be posted in the Legal Department. The experience required was about Labour Court practice. In fact, as the example of Mr.Nizampurkar showed, he was posted in the Staff Section though later-on brought into the Legal Department. In this view of the matter, in our view, the Officers recruited in the 1979 batch cannot seek any parity with the 1982 batch.
14. As far as 1983 batch is concerned undoubtedly, there is good amount of similarity between them and the 1982 batch with respect to their appointments as well as the work expected from them. Both are appointed for the posts in the Legal Department. For both the posts Degree in Law as well as three years experience as an Advocate or Solicitor is a necessary eligibility requirement. However, the main distinguishing factor as far as the 1982 batch is concerned, is that an additional expertise in the field of Banking and Commercial Law and Company Law is required. For that very purpose, the age limit was relaxed. Candidates were permitted to apply upto the age of 35 years with further relaxation of five years. This is as against the age limit of 30 years in the advertisement for the 1983 batch. Now it is for the management to decide what qualifications and expertise it needs for filling the post in a particular year. Undoubtedly, the Officers recruited in both the batches were required to work in the Legal Department, but those recruited in the 1982 batch, were required for certain specific purpose. Those were the expectations from them and for those higher expectations, the Banking Service Recruitment Board thought that a higher pay was necessary. It is for that purpose that year, higher starting pay was prescribed in the advertisement in that year. Mr.Pai is fair enough to state that from the next year, however, it was realised that such a specialised recruitment was not necessary and hence the Banks had stopped such a higher starting pay.
15. In our view, this explanation of the respondents deserves to be accepted. We cannot substitute our view for that of the organization wherein the persons are to be recruited. There is no allegation of malafides. Therefore, what we have to see is as to whether there is any irrationality or absence of basis in the decision taken by the respondents. We do not find that. In the absence of any allegation of malafide and when there is an explanation given by the respondents for the higher starting pay given to the 1982 batch, we cannot bring in the doctrine of parity and direct the respondents that they ought to pay the same starting pay to the recruits of the 1983 batch or the 1979 batch. Merely because almost all the officers of the three batches are now in the same department, one cannot presume or conclude that they are discharging equal duties or are eligible for equal pay. As far as the 1979 batch is concerned, the post advertised is quite different. Again, between the batches of 1982 and 1983, the qualifications for the 1982 batch were much higher so also the duties expected to be discharged. As observed by the Apex Court in the above referred judgment in State of Haryana Vs. Jasmer Singh (supra), the evaluation of such jobs for the purposes of pay scales must be left to expert bodies and, unless there are malafides, its evaluation should be accepted. In the instant case, it is the Banking Service Recruitment Board which has conducted recruitments and persons concerned applied for these posts in pursuance to those advertisements and secured those jobs. As far as the recruits for the 1979 batch are concerned, this petition is filed on their behalf some 10 years after recruitment. Even as far as the 1983 batch is concerned this petition is filed six years after their recruitment. We understand that there is some heart-burning on the part of the Officers who are working in the same department. However, having considered the explanation given by the respondents, it is not possible for us to bring in the doctrine of parity and to direct equal pay to be paid to the persons recruited in these different batches. The petition, is therefore, dismissed. There will not be any order as to costs.