Sashikanta Mishra, J
1. The petitioners have filed this writ application with the following prayer:
“ In view of the facts and circumstances as narrated above it is ardently prayed that your Lordships may graciously be pleased to issue RULE NISI calling upon the opp. Parties to show cause and in the event the Opp. Parties are fails to show cause or shows insufficient cause then the said Rule may be made absolute, by quashing the order under Annexure-4;
And the Opp. Party No.1 may be directed to allow the Teaching Assistants of I.G.I.T. , Sarang, having 5 years of experience as such, may be brought over to the cadere of Sr. Teaching Assistant, at per with the scale of their counter parts working at U.C.E. Burla, as Sr. Instructor;
And pass such other order/orders as this Hon’ble Court deems fit and proper in the interest of euqlaity, justice and good conscience;
And for which act of kindness the petitioners hall as in duty bound ever pray.”
2. The petitioners, being Diploma Holders in various engineering disciplines, were selected by a Selection Committee in the year 1991 and joined as Teaching Assistants in various departments of Indira Gandhi Institute of Technology, Sarang (IGIT). Said institute is an autonomous institute being registered under the Societies Registration Act, 1860 and managed by a Board of Governors. The only avenue of promotion for the Teaching Assistants is the post of Senior Teaching Assistant, but in view of limited posts in the promotional cadre, likelihood of their promotion was bleak and amounted to stagnation in service. While working as such, the petitioners came to know that in a similar autonomous degree engineering college, run and managed by the State, namely, University College of Engineering (UCE), Burla, persons with qualification in diploma in engineering were appointed as Junior Instructors and were performing duties identical to that of the petitioners. Their next promotional avenue is Senior Instructor with higher scale of pay. Keeping in view the limited possibility of promotion of said Junior Instructors of UCE, the Government in Industries Department, as per memo dated 11.09.1981, decided that the Junior Instructors will be taken over to the scale of Senior Instructor as and when they acquired the minimum qualification prescribed for Senior Instructor, i.e. completion of five years of service in case of diploma holders and 10 years of service in case of ITI certificate holders. Accordingly, appropriate benefits were granted to the Junior Instructors of UCE . The petitioners, claiming to be similarly placed as their counter-parts in UCE, approached the authorities of IGIT by submitting representation on 19.02.1996 for grant of similar benefits. The grievance of the petitioner was considered by the Board of Governors in its 28th meeting held on 04.07.1996 and it was decided to refer the case to the Government for final decision. An Anomaly Committee constituted by the Government in the Department of Industries, under the Chairmanship of Additional Secretary, considered the issue in its meeting, held on 05.05.1998, and decided that same benefits should be extended to the similar category of employees. The Government thereafter sought for several clarifications from IGIT which were complied with from time to time. The Vice-Chancellor of Biju Pattnaik University of Technology was requested by the Government to furnish his views as to whether the entry qualification/job responsibility of Teaching Assistant/TDA/Junior Engineer of IGIT, Sarang is exactly the same as that of Junior Instructor of UCE, Burla as also regarding the equality of job of Senior Instructor. In response, the views of the University were communicated to the Government vide letter dated 02.09.2005 answering both the aforementioned queries in the affirmative. Since no action was taken, the petitioners again submitted a representation addressed to the Principal of IGIT on 18.12.2008. Since no action was taken, the petitioners approached this Court in W.P.(C). No. 15856 of 2009. By order dated 10.11.2009, a Division Bench of this Court directed the Secretary, Department of Industries to look into the grievances raised by the petitioners, through their representations, with liberty to them to submit fresh representations. Accordingly, the petitioners submitted fresh representation enclosing all relevant documents on 20.11.2009, which was forwarded by the Principal IGIT, Sarang on the same day to the Secretary. Since the representation was not considered within the time stipulated, the petitioners approached this Court again in CONTC No. 682 of 2010, which was disposed of on 19.04.2010 by this Court with direction to comply with the order dated 10.11.2009 withing three months. In view of such order, the Secretary, Department of Industries (Opposite Party No.1) considered and rejected the grievance of the petitioner by order dated 18.06.2010, copy of which is enclosed as Annexure-4, and impugned in the writ application.
4. The case of the State (Opposite Party No.1) is that the grant of promotional scale of pay of Senior Instructor to the Junior Instructors of UCE, Burla after completion of five years of service, irrespective of any sanctioned posts in the higher grade as per Government order dated 11.09.1981, was only to merge the scale of pay of Junior Instructor with that of Senior Instructor for the existing Junior Instructors for limited period to reduce number of scales. It was a one-time settlement for providing promotional scale to the then Junior Instructors of UCE, Burla. Further continuance of such principle is an outcome of misinterpretation of the instructions issued on 11.09.1981. It is the further case of Opposite Party No.1 that, in the meantime, petitioner No.1 and 4 have been promoted to the post of Senior Technical Assistant during the year 2021 and have also availed the benefits of MACP. In so far as promotion of Petitioner No.2 is concerned, there is no vacancy in the senior post. The petitioner No.3, in the meantime, has been transferred to another department as Junior Maintenance Engineer which is a separate cadre and job assignment for the post is totally different. Government has sanctioned Time Bound Advancement Scale (TBA), Assured Carrier Progression (ACP) scale of pay allowing financial upgradation. The petitioners have availed the benefits like regular progression upon completion of 10, 20 and 30 years of service.
5. In the counter filed by IGIT, it is stated that the petitioners have raised the claim of being granted the promotional scale of pay upon completion of five years of service like their counterparts in UCE, Burla on a misguided notion of Government memo dated 11.09.1981. The promotional benefit granted to the Junior Instructors of UCE, Burla is not applicable to the post held by the petitioners in IGIT as there is no such post sanctioned and said post is also not equal or at par with Junior Instructors of UCE, Burla. Nevertheless, during pendency of the writ petition, the petitioners have been promoted to the next senior scale, i.e. Senior Teaching Assistant. Since all the petitioners have been granted the desired benefits, the writ application has become infructuous.
6. Heard Mr. Bikram Keshari Mohanty, learned counsel for the petitioner, Mr. A.R. Dash, Learned Additional Government Advocate for the State and Mr. S. Sahoo, learned counsel for IGIT.
7. Mr. Mohanty would argue that the grounds cited by the Secretary for rejecting the claim of the petitioners that the Government instruction as per order dated 11.09.1981 passed in respect of Junior Instructors of UCE, Burla, was a one time settlement is, on the face of it perverse because said order dated 11.09.1981 of the Government does not at any place mention so. Mr. Mohanty further argues, the claim of the petitioner is parity in the matter of grant of higher scale of pay as was granted to their counterparts in UCE. He submits, notwithstanding the difference in designation, it is an admitted fact that the qualification and job responsibility of the Junior Instructors of UCE, Burla is identical to the Teaching Assistants of IGIT with identical pay scale that is Rs. 1400-2600/-. The post of Senior Instructor of UCE and Senior Teaching Assistant of IGIT also carries the same scale of pay i.e. Rs.2,000-3,500/-. Identity between the two posts has been accepted by all concerned at all times including the authorities of Biju Pattnaik University of Technology as evident from its letter dated 02.09.2005 (enclosed as Annexure-12 series). The authorities of IGIT have also accepted the genuineness of the claim of the petitioners and recommended to the Government for grant of the desired benefits to them. It is therefore, no longer open to them to take a contrary view in their counter affidavit filed before this Court. As regards grant of promotional benefits and financial upgradation subsequent to filing of the writ application, Mr. Mohanty would argue that the grievance of the petitioners relates to period past, that is, the time when each of them had completed five years of service as Junior Instructors and therefore, it amounts to depriving them of substantial financial benefits till the date of their actual promotion and financial upgradation.
8. Mr. A.R.Dash, learned State counsel would argue that the decision of the Government as contained in its order dated 11.09.1981 was exclusively meant for the Junior Instructors of UCE and not an order to be made applicable to employees of all establishments. Said decision of the Government was based on facts then prevalent and therefore, it has to be considered as a one-time exercise which cannot have any universal application.
9. Mr. S. Sahoo would argue that despite recommendation of the case of the petitioners at the relevant time to the Government, the authorities of IGIT cannot be estopped to object to the claim of the petitioners subsequently. Mr. Sahoo has relied upon the decision of the Supreme Court in the case of New Okhla Industrial Development Authority and another vs. B.D.Singhal and Others(2021) 17 SCC 435 in this regard.
Mr. Sahoo further argues that parity in pay can be considered only if there is sufficient material to prove equality between two sets of employees and even if the similarly situated persons perform equal work quantitatively, they may be differentiated qualitatively. Merely occupying the same position, or in the absence of determination in equality by an expert body, Courts should be slow to tinker with pay parity determination. He also relies on the judgment of the Supreme Court in the case of Union of India & Ors v Pradip Kumar Dey (2000) 8 SCC 580 to fortify his argument. Mr. Sahoo also argues that in any case, all the petitioners have been granted either promotion or financial upgradation in the form of TBA/ACP/RACP and MACP considering the stagnation in their service careers.
10. Having regard to the rival submissions noted above, it is evident that the claim of the petitioner is founded on principle of ‘equal pay for equal work’. It would be apposite to make a reference to the settled position of law with regard to the principle of ‘equal pay for equal work’. A Constitution Bench of the Supreme Court, in the case of Randhir Singh vs. Union of India AIR 1962 SC 1139 held that the principle ‘equal Pay for equal work’ is an enforceable constitutional right. Referring to the Preamble and the Directive Principles in Article 39(d) it was held as follows;
“ Construing Articles 14 and 16 in the light of the Preamble and Article 39(d) we are of the view that the principle ‘equal Pay for equal work’ is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer’
In Supreme Court Employees’ Welfare of Association vs. Union of India AIR 1990 SC 334 the following was observed:
“ in other words, where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of ‘equal pay for equal work’, as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of ‘equal pay for equal work’ will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of ‘equal pay for equal work’, as envisaged by Article 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Article 37 of the Constitution.”
Placing emphasis on identity of work of employees as being the guiding factor, the Supreme Court in the case of National Museum Non-gazetted Employees Association vs. Union of India 1988 SUPP SCC 673 held that the Gallery Assistants of National Museum of New Delhi are entitled to the same pay scale as Record Assistants in the National Archives having regard to the qualification, nature and condition of work in both the establishments.
Similarly, in the case of Doordarshan Cameramen’s Welfare Association vs. Union of India 1990(supp) SCC 262, the Supreme Court directed parity in respect of Sound Recordists, Cameramen etc. of Doordarshan with those of their counterparts in the Films Division. In the case of Girl Kalyan Kendra Workers Union vs. Union of India. 1991 1 SCC 619 The Supreme Court held that the principle of ‘equal pay for equal work’ would apply so long as reasonable similarity in the nature of work, performance of duties, qualifications and the quality of work performed exists. It was not necessary to demonstrate the similarity with mathematical accuracy. As regards the extension of said principle to instrumentalities of the State, the Supreme Court in the case of Employees of Tangenniry and Footwear Corp of India ltd. vs. Union of India AIR 1991 SC 1361 held that the doctrine being based on enforcement of fundamental rights under Article 14, the benefit thereof can also be extended to instrumentalities of the State. It would also be relevant in this regard to refer to the judgment of the Supreme Court in Associate Banks Officers Association vs. State Bank of India 1998 1 SCC 428 wherein it was emphasized that when the claim is made by two different organizations that are associated with each other, it has to be shown that the two organizations are in a comparable position having regard to scales of operation, responsibility of officers etc.
11. Thus, what emerges from the above reference to the settled position of law is that firstly, a claim for parity in pay scales based on the doctrine of ‘equal pay for equal work’ can be validly raised by and considered with reference to employees of two different but associated organizations. Secondly, the claim, in order to succeed has to be substantiated by evidence regarding identity in all relevant aspects such as entry qualification, nature of work, pay scales etc.
In this context, it is seen that both UCE (at the relevant time) and IGIT are engineering colleges and at the relevant time were affiliated to the Biju Pattnaik University of Technology. It is also seen that the post of Teaching Assistant of IGIT corresponds to the post of Junior Instructor of UCE as would be evident from comparison of their pay scales, qualification, nature of work etc. It would be apposite in this regard to refer to the communication dated 07.10.1996 of the Principal of IGIT enclosing the agenda notes and the decision of the Board of Governors, copy enclosed as Annexure-8 to the writ application. The Board of Governors, after making a comparative analysis of the relevant aspects of both the posts, resolved as follows:
… In this connection, an agenda item vide No. D/29 was placed before the Board of Governor in their 28th meeting hold on 4.7.96 and the Board resolved as under:-
“ The Board discussed on the representation of Teaching Asst./Junior Engineers/Technical Development Asst. of the institute on equalization of their pay scales with that of the employees of U.C.E., Burla having identical qualification, experience and job assignment.
The Board resolved that the cases be referred to Govt. of Orissa in Industries Department for decision”
Significantly, on a query of the Government in its letter dated 02.09.2005 the University replied as follows:
“1. There is no post of Jr. Instructor or Sr. Instructor in IGIT Sarang, but such posts are there in UCE, Burla. Similarly there is no post of TA/TDA/Jr. Engineer or STA in UCE, Burla, but such posts are there is IGIT, Sarang.
There should be uniformity in designation in all Government Engineering Colleges.
2. The entry qualification and job responsibility are exactly same in both the cases i.e. Jr. Instructor of UCE Burla and TA/TDA/Jr. Engineer of IGIT. The qualification is Diploma in concerned discipline. Regarding job responsibility, they have to take care of the Stock and equipment of the laboratories including purchase of equipment etc. They have to help the teacher in conducting practicals /laboratories/workshops classes.
3. Regarding job responsibility of Sr. Instructor of UCE Burla and STA of IGIT, they are also equal. They are given overall responsibility of one or more laboratories/section of workshop and involve in conduct of sessional classes.”
12. From the above discussion, it is clear that there is complete identity in the post of Teaching Assistant of IGIT and Junior Instructor of UCE, Burla in terms of entry qualification, nature of work and pay scales being duly certified by the Institute (IGIT) as well as the University. Such being the position, the ratio of Pradip Kumar Dey
(supra) only lends support to the claim for parity inasmuch as the Supreme Court held that pay equation determination or equivalence by expert bodies should not be ordinarily fiddled with by courts. In the present case, the Board of Governors and the University have endorsed the identical nature of the two posts, in all respect.
13. It would also be proper at this stage to refer to the proceeding of the meeting held on 05.05.1998, under Chairmanship of Additional Secretary to Government regarding rationalization of the pay structures of the staff of the engineering colleges, wherein it was, inter alia, held that there should be uniform pay scales for the staff of engineering colleges holding equivalent posts as prescribed in Government Order of 1996. Regarding the benefits granted to similarly placed employees of UCE, Burla and CET being extended to equivalent posts of REC Rourkela and IGIT, the concerned authorities were advised to send their proposals to the Government for immediate action. As it appears, despite submission of proposal by the authorities of IGIT with adequate justification, no action was taken. Ultimately, with the intervention of this Court, in W.P.(C) No. 15656 of 2009 and CONTC No. 682 of 2010, the claim of the petitioner was considered but only to be rejected.
14. Coming to the ground of rejection, the Secretary has held that the benefit of grant of promotional scale of pay of Senior Instructors of UCE, Burla to the Junior Instructors of UCE, Burla after completing five years of service irrespective of any sanctioned posts as per Government order dated 11.09.1981 was with the intention of merging the scale of pay of Junior Instructor with that of Senior Instructor for the existing Junior Instructors for a limited period to reduce the number of scales and that it was a one-time settlement for providing promotional scale to the then Junior Instructors of UCE and further continuance of such principles would be misinterpretation of the instruction contained in order dated 11.09.1991. Firstly, there is nothing mentioned in the order dated 11.09.1981 to even remotely suggest that it was a one-time measure or settlement. That apart, said Government order provided that the Junior Instructors will be taken over to the scale of pay of Senior Instructors as and when they acquired the minimum qualification prescribed for the post of Senior Instructors which makes it evident that such benefit was granted in continuum and not something intended to be granted to a set of employees as a one-time measure or for a particular length of time.
It is important to take note of the reasons that had prompted the Government to take the decision, as enumerated in the order dated 11.09.1981 in the following manner:
“1. The nature of work and responsibility of both Junior and Senior Instructors are same.
2. Most of the Junior Instructors have reached maximum of their pay scale and they have hardly any promotional avenue.
3. The State Govt. have combined the cadre of Sub-deputy and Deputy Collectors and Junior and Senior Finance Services.
4. Government have integrated the scale of pay of Junior and Senior Instructs in the I.T.Is.
5. The 4th pay committed aimed at reducing number of scales of pay.”
It is equally important to note the following reasoning adopted by the Government:
“The pay scale of Rs.500-825/- for Senior Instructors has been fixed keeping in view the qualification prescribed for the post which is higher than that prescribed for the Junior Instructors. In case the two grades are merged persons with lower minimum qualification will be entitled to a pay scale which has been prescribed for persons with higher qualification. Hence equalization of pay scale of two categories of Instructors is not reasonable. The analogy given in support of the proposal does not hold good because in cases of O.A.S. and O.F.S. and I.T.I. Instructors the minimum qualification prescribed for both the cadre was same.”
It is thus evident that it was not just a decision taken to merge the pay scales of Junior Instructor and Senior Instructor which, in fact, was refused by the Government. However, considering the grounds raised, the Government allowed such merger in the form of the condition that the Junior Instructors will be taken over in the scale of pay of Senior Instructor as and when they acquired the minimum qualification prescribed for the post of Senior Instructor. The very same situation exists in respect of the Teaching Assistant and Senior Teaching Assistant of IGIT. Since there can be no dispute that both UCE and IGIT are instrumentalities of the State being affiliated to BPUT, so, in view of the settled position of law as discussed above, the same benefit as was granted to the employees of UCE ought to have been granted to the employees of IGIT. Obviously, with all other things being equal, there cannot be two different standards for similar category of employees of two separate institutes both of which are under the administrative control of the State Government through BPUT. This Court therefore, holds that the rejection of representation by the Secretary vide Annexure-4 was improper and unjustified as giving effect to the order would obviously amount to discrimination between the employees offending thereby the principle of equality enshrined under Article 14 of the Constitution.
15. It is surprising to note that in all these years IGIT has always supported the claim of the petitioners and recommended their case to the Government. It has been argued relying upon the case of New Okhla (supra) that such recommendation cannot act as estoppel against the IGIT and therefore, it is still open to it to resist the claim raised in the writ petition. In New Okla (supra) the Supreme Court inter alia held as follows:
“27. The argument of the respondents that the appellant Authority is estopped from claiming that the Government Order issued on 30-9-2012 cannot be given retrospective effect from 9-7-2012 since the Board resolution proposed an increase in the retirement age of its employees with “immediate effect” is unsustainable. For the principle of promissory estoppel to apply, one party must have made an unequivocal promise, intending to create or affect a legal relationship between the parties. [Monnet Ispat & Energy Ltd. v. Union of India, (2012) 11 SCC 1] The recommendation of Noida Authority cannot create or alter the legal relationship since it is subject to the approval of the Government. H.L. Gokhale, J. in a concurring opinion in Monnet Ispat & Energy Ltd. v. Union of India [Monnet Ispat & Energy Ltd. v. Union of India, (2012) 11 SCC 1] clarified that the principle of promissory estoppel will not apply if the communication issued was either a proposal or a recommendation. The learned Judge observed : (SCC p. 153, para 289)
“289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification.” (Emphasis supplied)
There can be no quarrel with the proposition laid down in the cited judgment but what is sought to be questioned by the petitioners is the stand taken by IGIT all through these years which they suddenly changed in the Counter Affidavit filed in this Court in July 2023. True, the proposal or recommendation made by IGIT may not, per se, bind it by way of a legal obligation but then, same thing cannot be said with regard to the specific stand taken by it in the matter. This would amount to approbation and reprobation, which needless to mention, is impermissible in law. IGIT, being an instrumentality of the State, cannot be seen to be taking mutually contradictory stands at different points of time. It is stated at the cost of repetition that the Board of Governors of IGIT found merit in the claim of the petitioners for which it referred the matter to the State Government for a decision. If what is mentioned in the counter filed by IGIT is treated as its specific and consistent stand in the matter then obviously, the Board of Governors would not have referred to the matter to the State Government. That apart, the claim of rationalization in pay scale sought for is not so much against IGIT but against the State Government on the basis of its earlier decision in the case of employees of UCE vide order dated 11.09.1981. It goes without saying that IGIT is to act upon the decision taken in this regard by the State Government.
16. Thus, from a conspectus of the analysis made hereinbefore, this Court holds that the claim of parity raised by the petitioners with their counterparts of UCE, Burla is justified. Consequently, the impugned order passed by the Secretary under Annexure 4 is held to be unsustainable in the eye of law. Having held thus, this Court would make it clear that the petitioners would be entitled to the pay scale of the Senior scale that is Senior Teaching Assistant from the date of completion of five years’ service as Teaching Assistant. Such benefit shall be granted till the date they were promoted to a higher scale and, or granted financial upgradation in the form of TBA/ACP/RACP and MACP, as the case may be. The financial benefits be calculated and revised and disbursed to the petitioners accordingly.
17. In the result, the writ application is allowed in terms of the directions and observations contained in Paragraph-16. The Opposite Party Authorities are directed to pass necessary orders to give effect to the direction of this Court within four months from the date of production of certified copy of this judgment by the petitioners.
………………………………
