STEEL AUTHORITY OF INDIA LTD. AND ORS.versusDIBYENDU BHATTACHARYA

               [201 OJ 13 (ADDL.) S.C.R. 429


       STEEL AUTHORITY OF !NOIA LTD. AND ORS.                      A
                            v.
              DIBYENDU BHATTACHARYA
             (Civil Appeal No. 9480 of 2010)
                     OCTOBER 29, 2010
                                                                   B
     [J.M. PANCHAL, DR. B.S. CHAUHAN AND GYAN
                 SUDHA MISRA, JJ.]

      Service law:
                                                                   c
       Pay scales - Parity in - Public sector undertaking -
 Company's policy that every Unit/Plant would be separate and
 independent for the purpose of appointments ~ Employee
 appointed in a Plant/Unit of the company on a post in non-
 executive cadre - Claim for parity with the post in executive     0
 cadre in another plant - Held: Cannot be allowed - Law does
 not prohibit an employer to have different grades of posts in
 different units owned by him - As every unit may make
 appointments taking into consideration local needs, it is
 neither desirable nor permissible to allow the claim for parity   E
 raised by the employee holding a post in non-executive cadre
 with a post in the executive cadre - It is also not permissible
 for the court to have judicial review of the reasons for which
 the said post was kept in executive cadre in another unit -
 Judicial review - Constitution of India, 1950.
                                                                   F
     Constitution of India, 1950:

      Article 39(d) - Equal pay for equal work - Burden of
  establishing right and parity in employment - Held: Is only
  on the person claiming such right - The equality claim can G
  be invoked in the matter of pay scales only when there is
  wholesome/wholesale identity between holders of two posts -
· The court must consider the factors like the source and mode
 of recruitment/appointment, the qualifications, the nature of
                              429                                  H
   430    SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A work, responsibilities, reliability, experience, confidentiality,
  functional need etc. - Service law - Doctrine of 'equal pay for
  equal work'.

       Article 14, 39(d) - Parity in pay sea/es - Held: It is a
  settled legal proposition that it is not always impermissible to
8
  provide two different pay-scales in the same cadre on the
  basis of selection based on merit with due regard to
  experience and seniority - Non-uniformities would not in all
  events violate Article 14 - Granting parity in pay sea/es
  depends upon the comparative evaluation of job and
C equation of posts - In view of that, parity of pay can be
  claimed by invoking the provisions of Articles 14 and 39(d)
  by establishing that the eligibility, mode of selection!
  recruitment, nature and quality of work and duties and effort,
  reliability, confidentiality, dexterity, functional need and
D responsibilities and status of both the posts are identical.

       Appellant no.2 invited applications for the post of
  Speech Therapist/Audiologist in its Durgapur Steel Plant
  in S-6 grade in Medical and Health Services. The
E respondent applied for the said post. An interview was
  held and the respondent was placed at serial no.4 in the
  merit list. As none of the first three candidates joined, the
  appointment was offered to the respondent. The
  respondent joined the said post without any protest. After
F serving for few years, the respondent started claiming
  parity with one 'BVP' an employee employed at Rourkela
  Steel Plant which was a different unit of the same
  company. 'BVP' was holding the post of E-1 grade in
  executive cadre though designated as Speech Therapist/
G Audiologist. The respondent made representation for
  changing the cadre, upgradation of the post, relaxation
  in eligibility and for the pay-scale of the post of E-1 grade
  from the date of his joining the service. The said
  representation was rejected by the authorities on the
   STEEL AUTHORITY OF INDIA LTD. AND ORS. v.            431
           DIBYENDU BHATTACHARYA
ground that upgradation of his post to executive cadre·        A
was not permissible under the policy of the company,
and as the respondent was working in non-executive
cadre, he could not claim parity with an employee in
another unit of the company on a post of executive
cadre. The respondent filed the writ petition before the       B
High Court. The Single Judge of the High Court
dismissed the same. The Division Bench of the High
Court, however, allowed the appeal and issued direction
to the appellants to grant the pay-scale to the respondent
as was being paid to the employee at the Rourkela Steel        c
Plant in the executive cadre and that too from the date
of his initial appointment. The instant appeal was filed
challenging the order of the High Court.

     Allowing the appeal, the Court
                                                               D
      HELD: 1.1. The Personnel Manual prepared by the
 Steel Authority of India Ltd. in 1992, prescribed different
 posts in different grades. E-1 grade posts included
 Management Trainees, Junior Managers and Medical
·Officers. Clause 5.3.1 clearly provided that centralised      E
 services were limited for few posts only which were
 Executive posts in· grade E-6 and above; Management
 Trainees (Technical) in E-1 grade; and Junior Manager (F
 & A) in grade E-1 etc. Clause 16.2 provided that all
 appointments offered should be made by respective Unit/       F
 Plant. Thus, it is evident that the services of the
 respondent were governed by the rules governing the
 Unit/Plant, i.e., Durgapur Steel Plant. It was not a
 centralised service and every unit was to be treated as
 separate and independent in these regards though              G
 belonging to the same company. In peculiar
 circumstances, it may be open to the authority to place
 a particular post in executive cadre and such a post may
 be required to be filled up by an experienced/qualified
 person. Another unit may not require such a higher post,
                                                               H
    432 . SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.


A considering the local needs and requirements. In such a
  fact-situation, it is neither desirable nor permissible to
  allow the claim of parity by the respondent holding a post
  in non-executive cadre to a post in executive cadre. It is
  also not permissible for the court to have a judicial review
B of the reasons for which the said post has been kept in
  executive cadre in another unit. Such a requirement may
  be present in the Unit at Rourkela Steel Plant. Moreover,
  'BVP' was appointed in 1987 about two decades prior to
  the respondent. Parity in pay with a person of such
c seniority may not be justified. [Para 11] [444-E-H; 445-A-
    D]
      State of Haryana v. Jasmer Singh & Ors. AIR 1997 SC
  1788; State of Haryana & Anr. v. Tilak Raj & Ors. AIR 2003
  SC 2658; Harbans Lal & Ors. v. State of Himachal Pradesh
D & Ors. (1989) 4 SCC 459 - relied on.

       1.2. It is the duty of an employee seeking parity of
  pay under Article 39(d) of the Constitution of India to
  prove and establish that he had been discriminated
E against, as the question of parity has to be dec.ided on
  the consideration of various facts and statutory rules etc.
  The doctrine of 'equal pay for equal work' as enshrined
  under Article 39 (d) of the Constitution read with Article
  14 thereof, cannot be applied in a vacuum. The
F constitutional scheme postulates equal pay for equal
  work for those who are equally placed in all respects. The
  court must consider the factors like the source and mode
  of recruitment/appointment, the qualifications, the nature
  of work, the value thereof, responsibilities, reliability,
G experience, confidentiality, functional need, etc. In other
  words, the equality clause can be invoked in the matter
  of pay scales only when there is wholesome/wholesale
  identity between the holders of two posts. The burden of
  establishing right and parity in employment is only on the
  person claiming such right. [Para 16] [447-C-F]
H
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.                  433
          DIBYENDU BHATTACHARYA
     UP. State Sugar Corporation Ltd. & Anr. v. Sant Raj            A
Singh & Ors. AIR 2006 SC 2296; Union of India & Anr. v.
Mahajabeen Akhtar AIR 2008 SC 435; Union of India & Ors.
v. Dineshan K.K. AIR 2008 SC 1026; Union of India & Ors.
v. Hiranmoy Sen & Ors. (2008) 1 SCC 630; Official Liquidator
v. Dayanand and Ors. (2008) 10 SCC 1; Uttar Pradesh State           B
Electricity Board & Anr. v. Aziz Ahmad (2009) 2 SCC 606;
State of Madhya Pradesh & Ors. v. Ramesh Chandra Bajpai
(2009) 13 SCC 635; State of West Bengal & Anr. v. We;;t
Bengal Minimum Wages /nspectorsAssociation & Ors. (2010)
5 SCC 225; State of Kera/a v. B. Renjith Kumar & Ors. (2008)        c
12 SCC 219; Union of India & Anr. v. P.K. Roy AIR 1968 SC
850; The State of Maharashtra & Anr. v. Chandrakant Anant
Kulkarni & Ors. AIR 1981 SC 1990; Vice Chancellor, La/it
Narain Mithi/a University v. Dayanand Jha AIR 1986 SC
1200; E.P. Royappa v. State of Tamil Nadu & Anr. AIR 1974           D
SC 555; Sub-Inspector Roop/al & Anr. v. Lt. Governor through
Chief Secretary, Delhi & Ors. (2000) 1 SCC 644; Union of
India & Ors. v. S.L. Dutta & Anr. (1991) 1 SCC 505; Union of
India & Ors. v. N. Y. Apte & Ors. (1998) 6 SCC 741; Kshetriya
Kisan Gramin Bank v. D.B. Sharma & Ors. AIR 2001 SC 168;            E
T. Venkateswarulu v. Executive Officer, Tirumala Tirupathi
Devasthanams & Ors. (2009) 1 SCC 546; S.C. Chandra &
Ors. v. State of Jharkhand & Ors. (2007) 8 SCC 279; S.P.
Shivprasad Pipal v. Union of India & Ors. (1998) 4 SCC 598
- relied on.
                                                                    F
     1.3. It is a settled legal proposition that it is not always
impermissible to provide two different pay-scales in the
same cadre on the basis of selection based on merit with
due regard to experience and seniority. Non uniformities
would not in all events violate Article 14. In view of that,        G
parity of pay can be claimed by invoking the provisions
of Articles 14 and 39(d) of the Constitution of India by
establishing that the eligibility, mode of selection/
recruitment, nature and quality of work and duties and
                                                                    H
    434    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A effort, reliability, confidentiality, dexterity, functional need
  and responsibilities and status of both the posts are
  identical. The functions may be the same but the skills
  and responsibilities may be really and substantially
  different. The other post may not require any higher
B qualification, seniority or other like factors. Granting
  parity in pay scales depends upon the comparative
  evaluation of job and equation of posts. The person
  claiming parity, must plead necessary averments and
  prove that all things are equal between the posts
c concerned. Such a complex issue cannot be adjudicated
  by evaluating the affidavits filed by the parties. The onus
  to establish the discrimination by the employer lies on
  the person claiming the parity of pay. The expert
  committee has to decide such issues, as the fixation of
  pay scales etc. falls within the exclusive domain of the
0
  executive. So long as the value judgment of those who
  are responsible for administration i.e. service conditions
  etc., is found to be bonafide, reasonable, and on
  intelligible criteria which has a rational nexus of objective
  of differentiation, such differentiation will not amount to
E discrimination. It is not prohibited in law to have two
  grades of posts in the same cadre. Thus, the
  nomenclature of a post may not be the sole determinative
  factor. The courts in exercise of their limited power of
  judicial review can only examine whether the decision of
F the authorities is rational and just or prejudicial to a
  particular set of employees. The court has to keep in mind
  that a mere difference in service conditions does not
  amount to discrimination. Unless there is complete and
  wholesale/wholesome identity between the two posts,
G they should not be treated as eq_uivalent and the Court
  should avoid applying the principle of equal pay for equal
  work. [Paras 24, 26] [450-G; 451-B-H; 452-A]

          Mewa Ram Kanojia v. All India Institute of Medical
H
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.               435
          DIBYENDU BHATTACHARYA
Sciences and Ors. (1989) 2 SCC 235; State of UP. & Ors. v.       A
J.P. Chaurasia & Ors. AIR 1989 SC 19 - relied on.

    Madhu Kishwar & Ors. v. State of Bihar & Ors. (1996) 5
SCC 125; Associate Banks Officers' Association v. State
Bank of India & Ors. AIR 1998 SC 32 - relied on.                 B
      1.4. The instant case has to be examined in view of
the settled legal propositions. Undoubtedly, the
respondent had applied in response to an advertisement
for the post of Grade S-6 and not for Grade E-1 as he did
not possess the requisite qualifications for the post in the     C
said Grade. The name of the respondent had appeared
at serial No. 4 in the merit list and he was offered
appointment only for the reason that the candidates
whose names appeared at serial Nos.1 and 3 asked for
pay protection/up-gradation of the post, and it was not          D
acceptable to the employer. The candidate whose name
appeared at serial No.2 in the merit list, did not join though
he was offered the appointment. The respondent
accepted the appointment in Grade S-6 on the terms and
conditions incorporated in his appointment letter without        E
any protest. The relief sought by the respondent is the
same, which had, in fact been asked by two candidates
in the merit list, above the respondent. If such a demand
was acceptable to the appellants they could have gotten
a more meritorious candidate than the respondent. Grant          F
of the relief sought by the respondent is violative of
equality clause contained in Article 14 of the Constitution
of India qua other candidates in the panel above the
respondent who did not join for not granting the same
relief though it was sought at least by two of them at the       G
initial stage of recruitment. By the impugned order, the
respondent was not granted the post in Grade E-1 but
salary equivalent to that of 'BVP' was granted to him. The
order itself is mutually inconsistent and contradictory.
The representation of the respondent was for waiving the         H
    436   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R. •


A criteria meaning thereby that he sought a relaxation in the
  eligibility criteria for the post in Grade E-1. It is evident
  from the representation itself that the respondent never
  possessed the eligibility for the post of Grade E-1. The
  law does not prohibit an employer to have different grade
B of posts in two different units owned by him. Every unit
  is an independent entity for the purpose of making
  recruitment of most of its employees. The respondent
  was not appointed in centralised services of the
  company. 'BVP' was appointed in E-1 Grade, in the
c Rourkela unit, considering his past services in the
  Bokaro Steel Plant, another unit of the company, for
  about two decades prior to the recruitment of the
  respondent. As every unit may make appointments taking
  into consideration, the local needs and requirement, such
D parity claimed by the respondent cannot be held to be
  tenable. The reliefs sought by the respondent for
  upgradation of the post and waiving the eligibility criteria
  was rightly refused by the appellants and by the Single
  Judge. In such a fact-situation, there was no justification
E for the Division Bench to allow the writ petition, granting
  the benefit from the date of initial appointment of the
  respondent. The respondent did not produce any
  tangible material to substantiate his claim, thus, he could
  not discharge the onus of proof to establish that he had
  made some justifiable claim. The respondent miserably
F failed to make out a case for pay parity to the post of E-
  1 Grade in executive cadre. [Para 27] [452-8-H; 453-A-E]

       2. Although a Plant/Unit of the appellant-company is
  competent to make appointment in the executive and
G non-executive cadres in the said Plant/Unit, however, it
  has no authority to determine the grade or the pay scale
  of a post or determine and sanction the number of posts
  since the same relates to the recruitment policy of the
  appellant-company. The perusal of the Recruitment Plan
H
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.            437
          DIBYENDU BHATTACHARYA

of the appellant-company laid down at Clause 7.1 of the      A
Personnel Manual showed that the Recruitment Plan
would form part of the annual Human Resource Plan of
the Company. Among other things, the Human Resource
Plan would clearly state the skill/grade wise requirement
                               '
of man power in the Company i.e., the Plants/Units, and      8
the subsidiaries separately.· Any deviation from the
approved plan/mix was subject to the prior approval of
Chairman/Board. In view of that, the competent authority
in the corporate office of the appellant-company is
directed to consider the issue. expeditiously relating to    c
anomaly rais.ed by the respondent for -fi.Jlure
recruitments. [Para 28] [453-F-H;· 454-A-C]
                   Case Law Reference:
    AIR 1997 SC 1788       relied on           Para 12       D
    AIR 2003 SC 2658       relied on           Para 13
    (1989) 4 sec 459       relied on           Para 14
    1989) 2 sec 235        relied on           Para 15
                                                             E
    AIR 2006 SC 2296       relied on           Para 16
    AIR 2008 SC 435        relied on           Para 16
    AIR 2008 SC 1026       relied on           Para 16
                                                             F
    (2008) 1 sec 630       relied on           Para 16
    (2008) 1o sec 1        relied on           Para 16
    c2009) 2 sec 606       relied on           Para 16
    (2009) 13 sec 635      relied on           Para 16       G

    (201 o) 5 sec 225      relied on           Para 17
    (2008) 12 sec 219      relied on           Para 17
                                                   /

    AIR 1968 SC 850        relied on           Para 18       H
    438    SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A         AIR 1981 SC 1990       relied on             Para 19
          AIR 1986 SC 1200       relied on             Para 19
          AIR 1974 SC 555        relied on             Para 20

B
          (2000) 1 sec 644       relied on             Para 20
          (1991) 1 sec 505       relied on             Para 20
          (1998) 6 sec 741       relied on             Para 20
          AIR 2001 SC 168        relied on             Para 20
c
          AIR 1989 SC 19         relied on             Para 21
          (2009) 1 sec 546       relied on             Para 21
          (2001) 8 sec 219        relied on            Para 22
D         1998) 4 sec 598         relied on            Para 23
          (1996) 5 sec 125        relied on            Para 25
          AIR 1998 SC 32          relied on            Para 25

E       CIVIL AP PELLATE JURISDICTION : Civil Appeal No.
    9480 of 2010.

        From the Judgment & Order dated 01.08.2008 of the High
    Court at Calcutta in F.M.A. 782 of 2007.
F       Rajiv Dhawan, Anurag Sharma, Prashant Kumar for the
    Appellants.

         S.K. Keshote, Sarad Kr. Singhania, Abhijit Sengupta for
    the Respondent.
G
          The Judgment of the Court was delivered by

          Dr. B.S. CHAUHAN, J. 1. Leave granted.

      2. This appeal has been preferred against the judgment
H and order dated 1.8.2008 passed by the High Court of Calcutta
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  439
DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
in FMA No.782 of 2007; MAT No.4487 of 2005; and CAN                 A
No.4852 of 2006 by which the Division Bench has allowed the
appeal of the respondent against the judgment and order of the
learned Single Judge dated 16.9.2005 passed in Writ Petition
No.2539(W) of 2005 by which the learned Single Judge had
rejected the claim of the respondent for parity in pay and          B
issuance of direction to upgrade the post held by him.

     3. Facts and circumstances giving rise to this appeal are
that the appellant No.2 issued an advertisement in "The
Statesman" newspaper dated 22.9.1993 inviting applications C
for the post of Speech Therapist/Audiologist at the Durgapur
Steel Plant in S-6 grade in Medical and Health Services. The
respondent applied in response to the said advertisement. An
interview was held on 17.6.1996 and the respondent's name
found place at serial no.4 in the merit list. As none of the first
three candidates joined, the appointment was offered to the · D
respondent vide letter dated 17.6.1996. The respondent joined
the said post without any protest. After serving for a few years,
respondent started claiming parity with one Shri B.V. Prabhakar,
employed at Rourkela Steel Plant, a different unit of the same
company who was holding the post of E-1 grade in executive E
cadre though designated as Speech Therapist/Audiologist.
Respondent made representation dated 1.9.2004 not claiming
parity in pay but to change the cadre and upgrade his post,
accord relaxation in eligibility and give him the pay-scale of the
post of E-1 grade from the date of his joining the service. The F
said representation stood rejected vide order dated 12/
14.10.2004 by the Authorities, observing that upgradation of his
post to executive cadre was not permissible under the policy
of the company, and as the respondent was working in non~
executive cadre, he could not claim parity with an employee in G
another unit of the company on a post of executive cadre.

      4. Being aggrieved, the respondent preferred the writ
petition before the High Court claiming the same relief, however,
the learned Single Judge dismissed the same vide judgment H
    440    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   and order dated 16.9.2005. The respondent challenged the
    said judgment by filing an intra court appeal. The said appeal
    has been allowed, issuing direction to the present appellants
    to grant the pay-scale to the respondent as was being paid to
    Shri B.V. Prabhakar at the Rourkela Steel Plant in the1executive
B   cadre and that too from the date of his initial appointment. The
    arrears also were to be paid within six weeks. Hence, this
    appeal.

          5. Shri Rajiv Dhawan, learned senior counsel appearing
    for the appellants has submitted that the said B.V. Prabhakar
C   had been appointed vide order dated 20.4.1987 in Roµrkela
    Steel Plant in executive cadre in E-1 grade taking into account
    his experience in service in the Bokaro Steel Plant, another unit
    of the company. There are different set of rules governing the
    services of the employees of all different plants/units of the
D   company and all the employees are not governed by the Central
    Rules. The respondent has not been appointed in the
    centralised service nor is his post transferable. The mode of
    appointment and selection of employees in each unit is different
    and made independently. The respondent had applied in
E   pursuance of an advertisement dated 22.9.1993 for a non-
    executive post along with eight other candidates. Respondent's
    name was at serial no.4 in the merit list/panel. The name of Shri
    Sourav Mukhopadhyay, serving in Bharat Heavy Electricals Ltd.
    (hereinafter referred to as BHEL) appeared at serial no.1 in the
F   panel, however as he was getting higher pay in BHEL than the
    post in question, he asked for pay protection. His demand was
    not acceptable to the appellants, thus, he declined the offer. The
    post was offered to Shri Mithlesh Kumar, the next candidate in
    the panel, but he did not turn up to join. The third candidate in
G   panel claimed for upgrading the post which was not acceptable
    to the company for the reason that the post had been advertised
    with certain grade and pay-scale and it was not possible for
    the unit to upgrade the same. On refusal to join by the third
    candidate, the post was offered to the respondent and he
H
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  441
DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
accepted and joined the post without protest in S-6 grade on         A
17 .6.1996 on the terms and conditions incorporated in his
appointment letter. The post to which the respondent claimed
parity is not equivalent to the post held by him and therefore,
the question of pay parity could not arise. The relief sought by
the respondent had been of upgradation of post, granting             B
relaxation of eligibility with retrospective effect. Such a relief
could not be granted to him. Each planUunit has to make the
recruitment as per the local needs and as per the requirements
of the plant. Thus, all the units do not have the same service
conditions. A post may be in executive cadre in one unit and         c
may be in non-executive cadre in another unit. Unequals cannot
be treated equals. Thus, there was no justification for the
Division Bench to allow the appeal filed by the respondent. Pay
parity claimed by the respondent could not be given to him as
he was holding a non-executive post, while Shri B.V.                 D
Prabhakar was holding the post in executive cadre in another
unit of the same company. Hence, the appeal deserves to be
allowed.

     6. Per contra, Shri S.K. Keshote, learned se~ior counsel
appearing for the respondent has vehemently opposed the              E
appeal contending that parity in pay is a fundamental right of
an employee. Both the posts carry the same nature of work
and responsibilities. There is no difference in both the posts
qualitatively. It is immaterial whether Shri B.V. Prabhakar was
holding the post in executive cadre. The relief has been granted     F
by the Division Bench of the High Court after considering all
relevant factors and judgments of this Court. The impugned
judgment and order does not require any interference a'nd thus,
the appeal is liable to be dismissed.
                                                                     G
     7. We have considered the rival submissions made by both
learned counsel for the parties and perused the record.

    8. Undoubtedly, several posts were advertised on.
22.9.1993 by the appellant No.2 to fill up the vacancies in
                                                                     H
    442    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A Durgapur Steel Plant including the post of Speech Therapist/
  Audiologist in S-6 grade and post of Doctor in grade E-1,
  Executive in Medical and Health Services. The respondent
  applied for the post in grade S-6 as he was not eligible for the
  post of grade E-1 wanting the qualification of a Doctor.
B Respondent in his representation made to the Authorities,
  claimed the change of cadre and upgradation of his post. The
  last part of his representation dated 1.9.2004 reads as under:-

          " I may kindly be placed/selected in Executive cadre
          waiving some criteria applicable to eligible candidate for
c         Executive posts, if nothing can be done to place me initially
          from the date of my joining in DSP in Executive cadre."
          (Emphasis added)

  Thus, it is evident from the aforesaid representation that the
D respondent requested the employer to waive the eligibility
  criteria and upgrade his post to the executive cadre with
  retrospective effect, i.e., from the date of his initial joining.

         The said representation stood rejected vide order dated
E   12/14.10.2004 with observation that non-executive post could
    not be upgraded to the executive cadre as per the policy of the
    company. More so, there was no enabling provision for grant
    of relaxation to the eligibility criteria.

         9. The respondent approached the High Court by filing the
F   writ petition, inter alia, claiming the following reliefs:-

          "(a) A writ of and/or in the nature of Mandamus
          commanding the respondents, their men, agents and/or
          assigns to rescind and/or cancel the memos bearing
G         no.PL- 1/1(101 )/6/07/Theraphy/004/2217 dated 1.10.2004,
          and OM HS/Misc/reply/October dated 12/14.10.2004,
          issued by the Manager (Personnel/recruitment), SAIL,
          DSP and the Director (M & HS), Durgapur Steel Plant
          respectively, forthwith;
H
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  443
DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
    (b) A writ of and/or in the nature of Mandamus                    A
    commanding the respondents, each one of them, their
    servants, agents and/or assigns to fix up the scale of pay
    of the petitioner commensurate to the post of E-1 as it is
    prevailing in other units of SAIL, forthwith;
                                                                      B
     (c) A writ of and/or in the nature of Mandamus commanding
     the respondents, each one of their agents and/or assigns
     not to withhold scale of pay for the post of Speech
     Therapist/Audiologist commensurate to the post of E-1
     grade;
                                                                      c
     (d) A writ of and/or in the nature of Mandamus directing
     the respondents, each one of them, their agents a.nd/or
     assigns to fix up the scale of pay of the petitioner
     commensurate to the post of E-1 grade and to release all
     arrear salary and consequential benefits since joining with      D
     the admissible rate of interest thereto, forthwith;

     (e) A writ in the nature of Mandamus directing the
     respondents, each one of them, their agents and/or
     assigns to treat the post of the petitioner as Executive post    E
     (E-1 grade) forthwith;

     (f) A writ of and/or in the nature of Certiorari directing the
     respondents to transmit the entire records of the case
     forming the basis of non providing and/or non fixation of
     the pay scale for the post of Speech Therapist/Audiologist       F
     commensurate to the post of E-1 grade to this Hon'ble
     Court and to certify them and on being so certified, quash
     the same so that conscionable justice may be
     administered to the parties.
                                                                      G
                                               "

     10. Appellants contested the case pointing out that it was
not permissible under the statutory rules/policy of the company
to meet the demand of the respondent-employee. Had it been
                                                                      H
    444     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A so, the appointment could have been offered to Shri Sourav
  Mukhopadhyay who claimed protection of pay which he was
  getting in BHEL, or to accede to the request made by other
  panellists to upgrade the post and in that manner the company
  could have got the service of a better candidate than the
B respondent. The writ petition was dismissed vide judgment and
  order dated 16.9.2005 observing that two unequals cannot be
  treated equals. Thus, the respondent was not dealt with any
  discrimination as there was no post in Durgapur Steel Plant of .
  Speech Therapist/Audiologist in executive cadre. The relief
c sought could not be granted to him and there was no reason
  to accept the writ petition. The Division Bench failed to
  appreciate what the relief claimed by the respondent was and
  further that two unequals cannot be treated equals. The Division
  Bench was swayed by an impression that it was not permissible
  for the employer-Company to have different pay- scales in two
0
  different units existing at different locations, though such a
  course is ·always permissible for the management.

        11. We have thoroughly examined the Personnel Manual
  prepared by the Steel Authority of India Ltd. in 1992. It
E prescribes different posts in different grades. E-1 grade posts
  include Management Trainees, Junior Managers and Medical
  Officers. Clause 5.3.1 clearly provides that centralised services
  are limited for few posts only which are Executive posts in grade
  E-6 and above; Management Trainees (Technical) in E-1 grade;
F and Junior Manager (F & A) in grade E-1 etc.

          Clause 5.3.2 reads as under:-

          "Direct recruitment to all other posts, executive as well as
          non-executive, will be done at the respective Plant/Unit
G         level, unless decided otherwise by the competent authority."

       Clause 16.2 provides that all appointments offered shall
  be made by respective Unit/Plant. Thus, it is evident that the
  services of the respondent were governed by rules governing
H the Unit/Plant i.e. Durgapur Steel Plant. It was not centralised
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  445
DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
service and every unit was to be treated as a separate and             A
independent in these regards though belonging to the same
company. In peculiar circumstances, it may be open to the
authority to place a particular post in executive cadre and such
a post may be required to be filled up by an experienced/
qualified person. Another unit may not require such a higher           B
post, considering the local needs and requirements. In such a
fact-situation, it is neither desirable nor permissible to allow the
claim of parity by the respondent holding a post in non-executive
cadre to a post in executive cadre. Nor it is permissible for the
court to have a judicial review of the reasons for which the said      c
post has been kept in executive cadre in another unit. Such a
requirement may be present in the Unit at Rourkela Steel Plant.
However, it cannot be doubted that the said Shri B.V. Prabhakar
had been appointed in 1987 about two decades prior to the
respondent. Parity in pay with a person of such seniority may          D
not be justified.

      12. In State of Haryana v. Jasmer Singh & Ors., AIR 1997
SC 1788, this Court considered the provisions of Articles 39
(d), 14 and 16 of the Constitution and held that the principle of
'equal pay for equal work' is not always easy to apply. There          E
are inherent difficulties in comparing and evaluating the work
done by different persons in different organisations, or even in
the same organisation. 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               F
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 performances can         G·
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.

    13. In State of Haryana & Anr. v. Tilak Raj & Ors., AIR
2003 SC 2658, this Court held as under:-                               H
    446    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A                "To claim a relief on the basis of equality, it is for the
          claimants to substantiate a clear-cut basis of equivalence
          and a resultant hostile discrimination before beco~_g
          eligible to claim rights on a par with other group vis-a-Vis
          an alleged discrimination ........ Equal pay for equal work"
B         is a concept which requires for its applicability complete
          and wholesome identity between a group of employees
          claiming identical pay scales and the other group of
          employees who have already earned such pay scales. The
          problem about equal pay cannot always be translated into
c         a mathematical formula."

       14. In Harbans Lal & Ors. v. State of Himachal Pradesh
  & Ors., (1989) 4 sec 459, this Court considered a similar
  issue and observed that while determining the issue of parity
  in pay, large number of considerations and various dimensions
D of the job are required to be taken up by the courts. The
  accuracy required by the job and the dexterity it entails may
  differ from job to job. It cannot be evaluated by the mere
  averments in the self - serving affidavits or counter affidavits of
  the parties. It must be left to be evaluated and determined by
E expert body. The Court further held as under :

                "The discrimination complained of must be within the
          same establishment owned by the same management. A
          comparison cannot be made with counterparts in other
F         establishments with different management, or even in
          establishments in different geographical locations though
          owned by the same master. Unless it is shown that there
          is a discrimination amongst the same set of employees
          by the same master in the same establishment, the
          principle of "equal pay for equal work" cannot be
G
          enforced .... "(Emphasis added)

        15. In Mewa Ram Kanojia v. All India Institute of Medical
    Sciences and Ors., (1989) 2 SCC 235, this Court dealt with
    an issue of pay parity between Speech Therapists and
H
   STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  447
 DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
Audiologists and held that merely because Speech Therapists              A
perform similar duties and functions in other institutions, are
_paid higher pay-scales is no good ground to accept the
petitioner's claim for equal pay. There may be difference in
educational qualifications, quality and volume of work required
to be performed by the hearing therapists in other institutions.         B
The person claiming parity must sufficiently produce material
 before the Court to adjudicate upon such a complicated issue
 of factual determination. More so, if the employer is not the
 same, the principle of equal pay for equal work would not be
 applicable.
                                                                         c
       16. It is the duty of an employee seeking parity of pay under
  Article 39(d) of the Constitution of India to prove and establish
  that he had been discriminated against, as the question of
  parity has to be decided on consideration of various facts and
  statutory rules etc. The doctrine of 'equal pay for equal work'        D
  as enshrined under Article 39 (d) of the Constitution read with
  Article 14 thereof, cannot be applied in a vacuum. The
  constitutional scheme postulates equal pay for equal work for
  those who are equally placed in all respects. The Court must
· consider the factors like the source and mode of recruitment/          E
  appointment, the qualifications, the nature of work, the value
  thereof, responsibilities, reliability, experience, confidentiality,
  functional need, etc. In other words, the equality clause can be
  invoked in the matter of pay scales only when there is
  wholesome/wholesale identity between the holders of two posts.         F
  The burden of establishing right and parity in employment is only
  on person claiming such right. (Vide UP. State Sugar
  Corporation Ltd. & Anr. v. Sant Raj Singh & Ors., AIR 2006
  SC 2296; Union of India & Anr. v. Mahajabeen Akhtar, AIR
  2008 SC 435; Union of India & Ors. v. Dineshan K.K., AIR               G
  2008 SC 1026; Union of India & Ors. v. Hiranmoy Sen & Ors.,
  (2008) 1 SCC 630; Official Liquidator v. Dayanand and Ors.,
  (2008) 10 SCC 1; Uttar Pradesh State Electricity Board & Anr.
  v. Aziz Ahmad, (2009) 2 SCC 606; and State of Madhya
                                                                         H
    448     SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A Pradesh & Ors. v. Ramesh Chandra Bajpai, (2009) 13 SCC
  635).

          17. This Court while deciding a similar issue in State of
    West Bengal & Anr. v. West Bengal Minimum Wages
    Inspectors Association & Ors., (2010) 5 SCC 225, held as
8   under:

                "The evaluation of duties and responsibilities of
          different posts and determination of the pay scales
          applicable to such posts and determination of parity in
c         duties and responsibilities are complex executive
          functions, to be carried out by expert bodies. Granting
          parity in pay scale depends upon comparative job
          evaluation and equation of posts.

                The principle 'equal pay for equal work' is not a
D
          fundamental right but a constitutional goal. It is dependent
          on various factors such as educational qualifications,
          nature of the jobs, duties to be performed, responsibilities
          to be discharged, experience, method of recruitment, etc.
          Comparison merely based on designation of posts is
E         misconceived. Courts should approach such matters with
          restraint and interfere only if they are satisfied that the
          decision of the Government is patently irrational, unjust and
          prejudicial to any particular section of employees.

F               The burden to prove disparity is on the employees
          claiming parity." (emphasis added)

        (See also State of Kera/a v. B. Renjith Kumar & Ors.,
    (2008) 12 sec 219)

G         18. In Union of India & Anr. v. P.K. Roy, AIR 1968 SC
    850, this Court accepted the factors laid down by the
    Committee of Chief Secretaries which was constituted for
    settling the disputes regarding equation of posts arising out of
    the States Reorganisation Act, 1956, wherein the following four
H
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  449                       .
DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
factors had been held to be determinative of the issue of          A
equivalence of posts:-

      1.    The nature and duties of a post;

      2.    The responsibilities and powers exercised by the
            officer holding a post, the extent of territorial or   B
            other charge held or responsibilities discharged;

      3.    The minimum qualifications, if any, prescribed for
            recruitment to the post; and

      4.    The salary of the post.
                                                                   c
    19. In The State of Maharashtra & Anr. v. Chandrakant
Anant Kulkarni & Ors., Al R 1981 SC 1990; and Vice
Chancellor, La/it Narain Mithila University v. Dayanand Jha,
AIR 1986 SC 1200, a similar view has been reiterated               D
observing that equal status and nature and responsibilities of
the duties attached to the two posts have to be taken into
consideration for equivalence of the post.

     20. Similar view has been reiterated in E.P. Royappa v.       E
State of Tamil Nadu & Anr., AIR 1974 SC 555; and Sub-
Inspector Roop/al & Anr. v. Lt. Governor through Chief
Secretary, Delhi & Ors., (2000) 1 SCC 644, wherein this Court
following the earlier judgment in P.K. Roy (Supra) held that the
salary of the post alone may not be a determining factor, the
                                                                   F
other three criterion should also be fulfilled.

     21. In Union oflndia & Ors. v. S.L. Dutta &Anr., (1991) 1
SCC 505; Union of India & Ors. v. N. Y. Apte & Ors., (1998) 6
SCC 741; State of UP. & Ors. v. J.P. Chaurasia & Ors., AIR
1989 SC 19; and Kshetriya Kisan Gramin Bank v. D. 8.               G
Sharma & Ors., AIR 2001 SC 168, this Court held that whether
the determination of two posts are equal or not, is a job of the
Expert Committee and the court should not interfere with it
unless the decision of the Committee is found to be
                                                                   H
    450    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   unreasonable or arbitrary or made on extraneous
    considerations. More so, it is an executive function to fix the
    service conditions etc. and lies within the exclusive domain of
    the rule making authority.

        (See also T. Venkateswarulu v. Executive Officer,
8
    Tirumala Tirupathi Devasthanams & Ors., (2009) 1 SCC 546).

        22. In S. C. Chandra & Ors. v. State of Jharkhand & Ors,
    (2007) 8 SCC 279, this Court held:

c                "In our opinion fixing pay scales by courts by applying
          the principle of equal pay for equal work upsets the high
          constitutional principle of separation of powers between
          the three organs of the State. Realising this, this Court has
          in recent years avoided applying the principle of equal pay
0         for equal work, unless there is complete and wholesale
          identity between the two groups ........ "

        23. In S.P. Shivprasad Pipal v. Union of India & Ors.,
    (1998) 4 SCC 598, this Court held as under:

E                " ..... .it is not open to the court to consider whether the
          equation of posts made by the Central Government is right
          or wrong. This was a matter exclusively within the province
          of the Central Government. Perhaps the only question the
          court can enquire into is whether the four principles cited
F         above had been properly taken into account. This is the
          narrow and limited field within which the supervisory
          jurisdiction of the court can operate".

       24. It is a settled legal proposition that it is not always
G impermissible to provide two different pay-scales in the same
  cadre on the basis of selection based on merit with due regard
  to experience and seniority. (Vide J.P. Chaurasia (Supra) and
  Meva Ram Kanojia (Supra).

         25. "Non-uniformities would not in all events violate Article
H   14." Thus, a mere difference does not always amount to
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  451
DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
discrimination. (Vide Madhu Kishwar & Ors. v. State of Bihar           A
& Ors., (1996) 5 SCC 125; Associate Banks Officers'
Association v. State Bank of India & Ors., AIR 1998 SC 32;
and Official Liquidator (Supra)).

      26. In view of the above? the law on the issue can be
                                                                       8
summarised to the effect that parity of pay can be claimed by
invoking the provisions of Articles 14 and 39(d) of the
Constitution of India by establishing that the eligibility, mode of
selection/recruitment, nature and quality of work and duties and
effort, reliability, confidentiality, dexterity, functional need and
responsibilities and status of both the posts are identical. The       C
functions may be the same but the skills and responsibilities
may be really and substantially different. The other post may
not require any higher qualification, seniority or other like
factors. Granting parity in pay scales depends upon the
comparative evaluation of job and equation of posts. The               D
person claiming parity, must plead necessary averments and
prove that all things are equal between the concerned posts.
Such a complex issue cannot be adjudicated by evaluating the
affidavits filed by the parties. The onus to establish the
discrimination by the employer lies on the person claiming the         E
parity of pay. The expert committee has to decide such issues,
as the fixation of pay scales etc. falls within the exclusive
domain cif the executive. So long as the value judgment of those
who are responsible for administration i.e. service conditions
etc., is found to be bonafide, reasonable, and on intelligible         F
criteria which has a rational nexus of objective of differentiation,
such differentiation will not amount to discrimination. It is not
prohibited in law to have two grades of posts in the same
cadre. Thus, the nomenclature of a post may not be the sole
determinative factor. The courts in exercise of their limited          G
power of judicial review can only examine whether the decision
of the State authorities is rational and just or prejudicial to a
particular set of employees. The court has to keep in mind that
a mere difference in service conditions does not amount to
discrimination. Unless there is complete and wholesale/.
                                                                       H   I
     452    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A wholesome identity between the two posts they should not be
  treated as equivalent and the Court should avoid applying the
  principle of equal pay for equal work.

          27. The present case requires to be examined in view of
     the aforesaid settled legal propositions. Undoubtedly, the
8    respondent had applied in response to an advertisement for
     the post of Grade S-6 and not for Grade E-1 as he did not
     possess the requisite qualifications for the post in the said
     Grade. The name of the respondent had appeared at serial No.
     4 in the merit list and he was offered appointment only for the
·C   reason that the candidates whose names appeared at serial
     Nos. 1 and 3 asked for pay protection/up-gradation of the post,
     and it was not acceptable to the employer. The candidate
     whose name appeared at serial No.2 in the merit list, did not
     join though was offered the appointment. The respondent
D    accepted the appointment in Grade S-6 on the terms and
     conditions incorporated in his appointment letter without any
     protest. The relief sought by the respondent is the same, which
     had, in fact been asked by two candidates in the merit list,
     above the respondent. If such a demand was acceptable to the
E    appellants they could have gotten a more meritorious candidate
     than respondent. Grant of the relief sought by the respondent
     is violative of equality clause contained in Article 14 of the
     Constitution of India qua other candidates in the panel above
     the respondent who did not join for not granting the same relief
F    though it had been sought at least by two of them at the initial
     state of recruitment. By the impugned order, the respondent has
     not been granted the post in Grade E-1 but salary equivalent
     to that of Shri B.V. Prabhakar has been granted to the
     Respondent. The order itself is mutually inconsistent and
G    contradictory. The representation of the respondent had been
     for waiving the criteria meaning thereby that the respondent
     sought a relaxation in the eligibility criteria for the post in Grade
     E-1. It is evident from the representation itself that the
     respondimt never possessed the eligibility for the post of Grade
H
  STEEL AUTHORITY OF INDIA LTD. AND ORS. v.  453
DIBYENDU BHATTACHARYA [DR. B.S. CHAUHAN, J.]
E-1. The Law does not prohibit an employer to have different          A
grade of posts in two different units owned by him. Every unit
is an independent entity for the purpose of making recruitment
of most of its employees. The respondent had not been
appointed in centralised services of the company. Shri B.V.
Prabhakar, had been appointed in E-1 Grade, in the Rourkela           B
unit, considering his past services in the Bokaro Steel Plant,
another unit of the company, for about two decades prior to the
recruitment of the respondent. As every unit may make
appointments taking into consideration the local needs and
requirement, such parity claimed by the respondent cannot be          c
held to be tenable. The reliefs sought by the respondent for
upgradation of the post and waiving the eligibility criteria had
rightly been refused by the appellants and by the learned Single
Judge. In such a fact-situation, there was no justification for the
Division Bench to allow the writ petition, granting the benefit       D
from the date of initial appointment of the respondent. The
respondent has not produced any tangible material to
substantiate his claim, thus, he could not discharge the onus
of proof to establish that he had made some justifiable claim.
The respondent miserably failed to make out a case for pay
parity to the post of E-1 Grade in executive cadre. The appeal,       E
thus, deserves to be allowed.

     28. Before parting with the case, it may be pertinent to state
that although a Plant/Unit of the appellant-company is competent
to make appointment in the executive and non-executive                F
cadres in the said plant/unit, however, it has no authority to
determine the grade or the pay scale of a post or determine
and sanction the number of posts since the same relates to the
recruitment policy of the appellant-company. This would be
evident from the perusal of the Recruitment Plan of .the              G
appellant-company laid down at Clause 7 .1 of the Personnel
Manual which reads:

    "The Recruitment Plan will form part of the annual Human
    Resource Plan of the Company. Among other things, the
                                                                      H
    454 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A          Human Resource Plan will clearly state the skill/grade wise
           requirement of man power in the Company i.e., the Plants/
           Units, and the subsidiaries separately. Any deviation from
           the approved plan/mix will be subject to the prior approval
           of Chairman/Board."
B
         In view of the above, the competent authority in the
    corporate office of the appellant-company is directed to
    consider the issue expeditiously relating to anomaly raised by
    the respondent herein for future recruitments.
c       ·29. The appeal is allowed. The judgment and order of the
    Division Bench dated 1.8.2008 which is impugned herein, is
    hereby set aside and the judgment of the learned Single Judge
    dated 16.9.2005 is restored. In the facts of the case, there shall
    be no order as to costs.
D
    D.G.                                            Appeal allowed.