The Supreme Court held that the principle of ‘equal pay for equal work’ has emerged from the interpretation of different provisions of the Constitution and expounded through a large number of judgments of the Supreme Court and constitutes law declared by the Court. Read on to know more.

Recently the Supreme Court, in State of Punjab versus Jagjit Singh, Civil Appeal No. 213 of 2013, held that the principle of ‘equal pay for equal work’ would apply to all 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.

Relying on Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which recognises the right of everyone to the enjoyment of just and favourable conditions of work and equal pay for equal work without distinction of any kind, a bench of Justice Jagdish Singh Khehar and S.A. Bobde held: “The principle of ‘equal pay for equal work’ constitutes a clear and unambiguous right and is vested in every employee –whether engaged on regular or temporary basis”. The Court observed that as India is a signatory to the covenant and having ratified the same on 10.04.1979, it cannot escape from the above obligation.

The court emphasing on the importance of ‘equal pay for equal work’ held that the principle has emerged from the interpretation of different provisions of the Constitution and expounded through a large number of judgments of the Supreme Court, and constitutes law declared by the Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India.

Dealing with the question whether temporarily engaged employees are entitled to the minimum of the pay scale, along with dearness allowance as is being paid to similarly-placed regular employees, the Court observed 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. Certainly not, in a welfare state.” Therefore, 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) in the majority of judgments of the Apex Court. In the matters where the Supreme Court did not extend the benefit of equal pay for equal work’ to temporary employees, it was because the employees could not establish, that they were rendering similar duties and responsibilities, as were being discharged by regular employees, holding corresponding posts. The court summarized the parameters set out by the Apex Court in different judgments explaining the legal position about the principle of ‘equal pay for equal work’,

‘Onus of proof’– The burden of proving that there is 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.

The mere fact that the subject post occupied by the claimant, is in a “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 differently, in the matter of their pay, merely because they belong to different departments of the Government.

The principle of ‘equal pay for equal work, applies to cases of unequal or different scales of pay, based on no classification or irrational classification. For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity.

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’. Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.

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 the difference in the degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible. The nature of work of the subject post shall 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.

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.

Persons performing the same or similar functions, duties 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.

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. In such a cause, the principle of ‘equal pay for equal work’, cannot be invoked.

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.

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. Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity. 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.

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.

The parity in pay, under the principle of ‘equal pay for equal work’, 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.

For parity in pay scales, under the principle of ‘equal pay for equal work’, the 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 nonteaching, 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.

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/suboffice level, when the duties are qualitatively dissimilar. 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. Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of the equation of pay-scales, under the principle of ‘equal pay for equal work’, even if two organizations have a common employer. Likewise, if the management and control of two organizations is with different entities, which are independent of one another, the principle of ‘equal pay for equal work’ would not apply.

The Court rightly held that an employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities.

“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. Any one, 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 dependents 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”