Allowing unequal pay for identical work amounts to whimsical discrimination: Punjab and Haryana High Court

Background

• An advertisement was issued inviting applications for selection and appointment of 1100 posts of assistant lineman and shift attendant in Kaithal, Haryana.
• The petitioner, being eligible, participated in the selection process and was appointed as shift attendant on contractual basis.
• The state vide instructions directed that contractual employees engaged in various departments be paid either 50 percent of the initial pay of a fresh regular entrant after January 1, 2006 or the wages fixed by the deputy commissioner under the Minimum Wages Act, 1948, whichever higher.
• Pursuant to office order, his monthly remuneration was reduced without issuance of any show cause notice.
• Petitioners argued that despite discharging the same responsibilities as their regular counterparts, they were being paid significantly lower wages.

Court’s observations

• While Article 14 of the Constitution of India forbids arbitrary discrimination sans an intelligible differentia, Article 39(d) highlights the intention of the framers to provide equal pay for equal work, for men and women alike.
• It transpires that the petitioner was initially appointed in the year 2007 and is continuously working.
• The perennial work is being extracted from petitioner(s) at par with their regular counterparts and the respondent has not controverted this fact in their written statement. There is no denial to the fact that the petitioner has been working for the last 17-18 years.
• The petitioner has rendered full time service since his appointment and has been performing identical duties, qualitatively and quantitatively, to his regular counterparts.
• The counsel for the respondent has been unable to indicate the nature of duties discharged by the petition discharged by his regular counterparts.
• It is not the case of the respondent that some material differences exist between the service of the petitioner and his regular counterparts, however, it has only been emphasised that the petitioner was aware of the terms of service.
• While the petitioner may have joined service on contractual basis, it remains a fact that he possesses the qualifications for the post and has been performing the same duties for nearly two decades.
• The petitioners have successfully established that they perform identical duties to their regular counterparts.
• The respondents have failed to provide any intelligible differentia to justify the stark difference in wages.
• The fact that the petitioners were engaged on a contractual basis, and not through a regular recruitment process, is irrelevant to the question of pay parity once it is established that the work is the same.
• The reasoning adopted in the speaking order is, therefore, hyper-technical and contrary to the settled position of law.

Court’s directions

• The impugned order is hereby quashed and set aside.
• The respondents are directed to pass an appropriate order granting the minimum of the regular pay scale to the petitioners within a period of three months.
• Furthermore, in case the case of the petitioners are covered under any regularization policy, they shall be considered for regularization within three months and an appropriate order be passed in this regard.