NAME – SHARAD MISHRA.

SEMESTER- VII
HIDAYTULLAHA NATIONAL LAW UNIVERSITY, RAIPUR, (C.G.)

TOPIC – EQUAL PAY FOR EQUAL WORK

INTRODUCTION

The preamble of the Constitution of India is an introduction to the Constitution and lays down in
brief the aims and objectives of the policy framers of the Union of India. It enunciates those socio-
economic goals and ends which are to be achieved by the Indian Constitution. These goals are
multitudinous in nature and secure for the citizens of India (in some cases for foreigners as well) a
variety of rights and ensure justice, liberty, equality, and fraternity to all.

Part IV of the Constitution lays down the Directive Principle of State Policy. This novel feature,
envisaged by our Constitution, was borrowed from the Constitution of Ireland, which itself had
borrowed it from the Spanish Constitution. These Directive Principles lay down the basic aims and
objectives of the States, to be followed in the governance of the country. They are more or less the
guidelines, directing the government as to what is to be kept in contemplation while framing the
policies. They can also be termed as a distinct set of moral duties, to be implemented by the state,
while giving shape to legislations and provisions of the State.

In other words Directive Principles act as a device for making the Government conform to the
ideals, which the Constitution lays, for the attainment of democracy in its true sense i.e. political as
well as economic. This can be done only when the Government complies with these stated
objectives and makes an attempt to make India welfare state in real as well as practical terms.

They are however non-justifiable rights on the people, which set out the economic, social and
political goals of the Indian Constitutional system, and place the government under a moral
obligation to achieve and maximise social welfare and basic social values like education,
employment, health etc.

The reason for their non-enforceability, as M.P. Jain 1 describes, is that they impose a positive
obligation upon the state and it is while taking actions for implementing these obligations that there
arise several limitations to the Government, one such constraint being the availability of
resources. The purpose for enunciating the extent of enforceability of directive principles of
state policy is of relevance in the present topic because the concept of equality of pay i.e. “equal
pay for equal work” being a part of these Directive Principles is to hold the same fate as other
1
Directive Principles. However, the Courts in India and the Supreme Court in particular have
constantly and consistently regarded the principle of equal pay for equal work as a constitutional
goal, much higher than being a mere Directive Principle, and have subsequently enforced it in-
tandem with the fundamental rights, enshrined under Right to Equality (Art. 14-18). The primary
purpose of this research project is to study the various interpretations which have been made by the
Supreme Court while adjudicating the cases, involving the concept of Equal pay for Equal
work as enshrined in Article 39(d) of the Constitution.

EQUAL PAY FOR EQUAL WORK UNDER THE CONSTITUTION

The concept of Equality of pay was incorporated under the Directive Principles of State Policy by
the framers of the Constitution so as to follow the principles of Equality and make India a welfare
State i.e. a country aimed at creating an egalitarian society. However the application of the concept
of Equality of pay was restricted only up to the discrimination on basis of gender and sex as under
the principle laid down under Article 39 which states as follows;

39. The State shall, in particular, direct its policy towards securing-

(d) that there is equal pay for equal work for both men and women.

Thus the framers of the Constitution incorporated this provision to wipe out any
discrimination made against women or men in regards to the terms of pay. However ongoing
strictly according to the provision, it nowhere states that this concept of equality of pay is to be
followed even in terms of employment as of between man and man or woman and woman i.e. it
does not grant a right that man must be paid equally among themselves and woman among
themselves if they perform the same kind of work. The aforesaid provision also does not state any
distinction between the capacity of these men and women and that has to be constructed by the
Courts themselves. Thus it is clear that while framers of the Constitution incorporated this
provision, they only kept in contemplation that there should not be any discrimination in terms of
pay on grounds of sex or gender of the person.

It has to be stated here that though it is the primary task of the employer not to discriminate on the
basis of sex (as made mandatory by the Supreme Court in recent judgments), the Constitution does
not provide for any classification that the employer can make such as on the basis of qualification
and level of skill of the employee i.e. if the workers perform the same task, they have to be
treated equally without any discrimination thereof.
Though the article speaks only as to discrimination between man and woman, the concept of equal
pay for equal work has been applied in generality to all without any hint of gender or class. The
Supreme Court continuously and consistently increasing the purview of this doctrine has gone far
off to make new interpretations so that any sort of discrimination, unless based on reasonable
grounds, does not go un-refuted. The very purpose and nature of the said article has been changed
by the apex court and the article which was originally instilled to support woman in there right of
equal status is now applied to now employed to nullify any sort of rule and provision which tends
to affect the rights of workers to get equal pay if they perform the same kind of work in similar
organizations. However the Supreme Court has added a new clause to the article in the way of
reasonable nexus of discrimination. This reasonable nexus includes the qualifications of the
employees, capacity of the workers and many more. The list is endless and new points of
classifications are incorporated in it as and when the Supreme Court says so.

EQUAL REMUNERATION ACT, 1976

For the purpose of incorporating and giving effect to the Constitutional directive of Equal pay for
equal work, The Equal Remuneration Act, 1976 was passed. The objects and reasons of the Act
states that President of India promulgated The Equal Remuneration Ordinance, 1975 on 26th
September, 1975 so that the provision of Art. 39(d) was implemented in the year, which was being
celebrated as the International Woman’s Year. The ordinance was brought to effect to provide
for payment of Equal Remuneration to both man and woman workers for the same work or work
of similar nature and for the prevention of discrimination on grounds of sex.

The various provisions for the payment of remuneration at equal rates are provided in Chapter II of
the Act and almost all the provisions point to similar ends and ultimately direct the employers not
to practice discrimination while recruitment, while payment or even while considering employees
for promotion. The Act also provides for maintenance of registers in the organisations, creation of
posts of Inspectors and other related offices to keep a check on such prejudiced practices, which are
likely to affect the provisions of the Act. It speaks extensively of what the employers have to follow
but is silent on the point of reasonable classification with the apex court has pointed out freely and
exhaustively. The Act does not, also, lay any provision as to whether the qualifications of the
employees are to be considered while framing paying packages or not. The only thing which the
Act point to is that the employer must not discriminate on the basis of the sex of the worker if both
man and woman are doing same or similar kind of work. Thus it is merely an enactment of Article
39(d) of the Constitution in its strict sense, leaving the scope of interpretation to the Courts.

CASE STUDY ANALYSIS

In this case, the petitioner was a Driver-Constable in the Delhi Police Force under Delhi
Administration who claimed that his scale of pay should be the same as the scale of pay of other
drivers in the service of the Delhi Administration as he discharged the same duties as the rest of the
drivers in the other offices. He stated that there was no reason whatsoever to discriminate against
the petitioner and other driver-constables merely because he and his ilk were described as
constables belonging to the Police Force instead of ordinary drivers, who had a grater pay scale.

In this landmark case the court conceded that, though the equation of posts and equations of
pay were matters primarily for the Executive Government and expert bodies like the Pay
Commission and not for Courts to decide but persons holding identical posts were not to be treated
differentially in the matters of pay merely because they belonged to different departments. It was
this case in which the Court held for the first time that though the principle of equal pay for equal
work was not expressly declared by the Constitution to be a fundamental right, it was certainly a
constitutional Goal. The Court also first time contemplated the fact that the doctrine proclaiming

‘Equal pay for equal work’ for both men and women meant ‘Equal pay for equal work’ for
everyone as and between sexes. The Court extended the purview of the doctrine under Right of
Equality and stated that Art. 14 of the Constitution enjoined the State not to deny any person
equality before the law or the equal protection of the laws and simultaneously Art. 16 declared that
there shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State and it was in this context that the doctrine of equal pay
for equal work was to be adjudged.

(II) Dharwad District PWD Literate Daily Wages Employees Association v. State of
Karnataka,3

This case was brought before the Supreme Court through a series of writ petitions asking for
quashing a notification of the government of Karnataka and for issuing directions to Government to
confirm the daily rated and monthly rated employees as regular government servants and for
payment of normal salaries to those workers employed under temporary terms. The petitions were
made, pleading that about 50,000 daily-wage workers were employed in the different Government
establishments and though many of them had put in 16 to 20 years of continuous service, they were
not regularised in their service and were not being paid equally, violating the principle of equal pay

2
AIR 1982 SC 879

3
AIR 1990 SC 883
for equal work as mandated by the Court. The petitions claimed for the pay of such workmen at the
rates equivalent to the minimum pay in the pay-scales of the regularly employed workers.

The Court held that Article 14 of the Constitution enjoined the State not to deny any person
equality before the law or the equal protection of the laws and Article 16 declared that there
shall be equality of opportunity for all citizens in matters relating to employment or appointment to
any office under the State. The Court emphasized that ‘the equality clauses of the Constitution must
mean something to everyone. To the vast majority of the people the equality clauses of the
Constitution would mean nothing if they are unconcerned with the work they did and the pay they
got. To them the equality clauses will have some substance if equal work meant equal pay.’ The
Court laid that the equality clauses of the Constitution under Articles 14 and 16 were to be
construed in the light of the Preamble and Article 39(d), and it followed that the principle 'equal pay
for equal work' was deducible from those Articles and could properly be applied to cases of unequal
scales of pay based on the classification or irrational classification.

The Court held that denial of minimum pay amounted to exploitation of labour and the government
was not to take advantage of its dominant position, and compel any worker to work even as a
casual labourer on starvation wages. The Court also laid that the Government was to be a model
employer, which must set forth an example to others. The Court enunciated the nature of Indian
state and held that India is a socialist republic which implies the existence of certain important
obligations which the State has to discharge. It gives several rights, of which rights of security of
work are of utmost importance. The Court therefore directed the State of Karnataka to regularize
the services of the casual employees who were daily rated and monthly rated employees and to
make them the same payment as regular employees are getting.

The Court also held that ‘Implementation of the principle of equal pay for equal work by
instrumentalities of State was obligatory by virtue of Article 39(d) read with Articles 14 and 16 and
also the socialist philosophy adopted by the Constitution and thus while considering the viability of
a scheme for regularization, the courts must keep in mind the anxiety of the aggrieved workers as
also the economic constraints of the State of its instrumentality.’ Consequently the Court while
ruling the obligation of the State in terms of incorporation of the scheme of Equal Pay for Equal
Work also sidelined the other factors which were to be considered before the said implementation
and it was not that the State had to install the provision of equal pay at all costs but it depended on
the constraints of the State and the conditions of the affected employees as well.

(III) U.P. Rajya Sahakari Bhoomi Vikas Bank Ltd. v. Workmen4

4
AIR 1990 SC 495
The facts in the following case were as follows. In the given bank, some employees were promoted
some time earlier while other set of employees were promoted later but both the senior and junior
groups of the promotees were doing same type of work. However, higher wages were given to
one group (seniors) of promotees from a particular back date. The Court held that the promotees
of other group could not be denied that benefit.

The Court also held that ‘the classification of persons performing the same work into senior and
junior groups with different pay will be violative of the principle of equal pay for equal work.’
Thus the Court made an attempt to regularize the conduct of the organizations and also highlighted
the fact that different schemes to evade the provision of equal pay for equal work will not be
allowed and whenever there was a hint of woe, the Court would come to the rescue of the
aggrieved workers.

(IV) M/s Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa5

This case was brought before the Supreme Court by way of a Special Leave Petition against the
decision of the High Court. The case was registered by the respondent who was working as a Lady
Stenographer in the said company and whose services had been terminated. She contended that
her remuneration was less than her male colleagues and she was thus entitled to recover the
amount equivalent to the difference between the remuneration she was paid and what was to be
paid. The case was originally filed before the authority appointed under the Equal Remuneration
Act, which held that the male and female workers were doing the same kind of work but no
discrimination was made. The Respondent appeared before the appellate Authority, which reversed
the order and stated that it was a clear case of discrimination and this was upheld by the High
Court. Before the Supreme Court, the petitioner urged that the difference in pay i.e. difference
between the remuneration of the male Stenographers and the remuneration of the Confidential Lady
Stenographers was on account of the settlement between the employees and the organization which
was arrived at after proper negotiation and thereby the Court must have regard to it. The petitioner
also contended that petitioner that the enforcement of the Act will be highly prejudicial to its
management, since its financial position is not satisfactory and he was not able to pay equal
remuneration to both male Stenographers and female Stenographers.

However, the apex Court held that the scope of Equal Remuneration Act would be invited when
there were any disparities of terms of pay within same levels even if the organization had financial
constraints. The Court laid that the applicability of the Act does not depend upon the financial
ability of the management to pay equal remuneration as provided by it.

5
AIR 1987 SC 1261
When once it was established, the Court said, that the lady Stenographers were doing practically
the same kind of work which the male Stenographers were discharging, the employer was bound to
pay the same remuneration to both of them irrespective of the place where they were working
unless it was shown that the woman was not fit to do the work of the male Stenographers.

Thus the Court, in the case, which can be said to be an authority on interpretation of Equal
Remuneration Act, held that the Act had overriding powers over any agreement which tended to
violate the principle as enshrined in Art. 39 (d) and any such agreement which allowed the
employer to practice discrimination without any reasonable justification would be held void
and inconsequential.

(V) Delhi Veterinary Association V. Union of India.6

This case was brought before the Supreme Court by a petition of Association Of Veterinary
Doctors in Delhi under Article 32 of the Constitution. They contended that their right of equality of
pay under Art 39(d) and under Art. 14 and 16 were breached because their salary as Assistant
Surgeons in the Office of Development Commissioner of Delhi Administration was lower than the
Doctors at similar posts, employed by the Union Territory of Chandigarh or by the Central
Government in Indo Tibetan Border Police and in Border Security Force. The petitioners stated that
the qualifications for the jobs in each case were more or less the same and they had similar types of
work. The Government of India denying the allegations stated that it was on basis of
recommendations made by the Agricultural Ministry and examined by Fourth Pay
Commission. The Supreme Court gave a landmark decision and stating the various social and
material requirements held that in addition to the principle of equal pay for equal work, the pay
structure of the employees of the government was also to reflect other social values. Apart from
being the dominant employer, the government was also expected to be the model employer. It
therefore had to follow certain basic principles in fixing various pay scales to different posts and
cadres in the government service. The degree of skill, the strain of work, experience involved,
training required, responsibility undertaken, mental and physical requirements, disagreeableness of
the task, hazards involved etc. were some of the relevant factors which were to be taken
into consideration while fixing the pay scales. The method of recruitment, the level at which the
recruitment was made in the hierarchy of service or cadre, minimum educational and technical
requirements prescribed for the post, were also some of the relevant factors. The paying capacity
of the government was also to be taken into consideration. Thus the Court laid the complete
rational and logical nexus for determination of pays.

6
(1984) 3 SCC 1
(VI) Surinder Singh v. Engineer in Chief, C.P.W.D7

This case was brought before the apex Court by way of Writ Petition. The prime contention of the
petitioners was that they were employed by the Central Public Works Department on Daily Wage
basis and their wages were less than those who were employed by the Department on permanent
basis but did the same kind of work. In reply, the respondents stated that the doctrine of Equality of
pay was an abstract concept and could not be applied. However, the Court held that it could not be
said that the doctrine of ‘Equal pay for equal work’ was a mere abstract doctrine and that it was not
capable of being enforced in a court of law. On the point of terms of service i.e. temporary and
permanent, the Court said that this doctrine was required to be applied to persons employed on
daily wages and they were entitled to the same wages as the permanent employees. The Court
specially referring to the government stated that the Central and the State Governments in all public
sector undertakings were expected to function like model and enlightened employers and thus it
casted an additional duty on the State undertakings to initiate and enhance the applicability of the
doctrine of equal pay for equal work as it represented the entire industrial framework of the
country.

(VII) Supreme Court Employee’s Welfare Association V. Union of India8

In this case, the Court held that though the doctrine of 'equal pay for equal work' does not come
within Art. 14 as an abstract doctrine, but if any classification made relating to the pay scales is
unreasonable, then Art. 14 would be attracted and such classification would be set aside and equal
pay will be directed to be given for equal work. The Supreme Court explained that where unequal
pay brought discrimination within the meaning of Art. 14 it will not be a violation of 'equal pay for
equal work' i.e. if the classification is proper and reasonable 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 this case, the Court also restricted itself from getting in executive matters and held that it laid on
the government or the management to fix the pay scales after considering various other matters and
the court were only to consider whether such fixation of pay scales resulted in an invidious
discrimination or was arbitrary.

The case was initiated by the petitions of the ministerial staff belonging to the Registry of the
Supreme Court. They claimed for increase in their pay scales after the pay scales of respective staff
of the High Court of Delhi were increased i.e. they were entitled for equal pay under provision of
7
AIR 1986 SC 585

8
(1989) 4 SCC 195
‘equal pay for equal work’ and therefore they approached the Court for redressal of their
grievances.

(VIII) Jaipal v. State of Haryana9

In this case, Supreme Court envisaged in general that Art.39 (d) ordained the State to direct its
policy towards securing equal pay for equal work for both men and women for the purpose of
avoiding any discrimination amongst the people doing similar work in matters relating to pay.

Commenting on the case, the Court held that though the doctrine of equal work equal pay would
apply on the premises of similar work but it does not mean that there should be complete identity in
all respects. To disregard the doctrine of equal pay for equal work on the ground of one
employment being temporary and the other being permanent in nature is unreasonable. A
temporary or casual employee performing the same duties and functions is entitled to the same pay
as paid to a permanent employee. Similarly, the difference in mode of selection will not affect the
application of the doctrine of "equal pay for equal work" if both the classes of persons perform
similar functions and duties under the same employer.

The facts in this case were that the petitioners were employed under a scheme of Haryana
Government as District Adult Education Officers for the purpose of imparting education to village
adults. However there was also a similar scheme with similar type of work but with a higher pay
scale, under the same government. The petitioners' grievance was that although they performed
functions and duties of the same nature as performed by the squad teachers but they were denied
the same scale of pay and instead they were paid a fixed salary.

(IX) Karnataka State Private College Stop-Gap Lecturers Association, v. State of Karnataka 10

In this case, the cause of action was that the order of the State government of Karnataka
which stated that the teacher, appointed on ad-hoc basis would be paid a fixed salary which would
be ten rupees less than that payable to a regular employee. However the issuing authority did not
give the basis for this discrimination. The order also provided that “such temporary appointments
would be continued for a further period of not more than three months, with one day's break”. The
Supreme Court held the order to be void and held it a violation of Art. 39(d) and also declared the

9
(1988) 3 SCC 354

10
AIR 1992 SC 677
payment of fixed salary to temporary teachers as invalid, making it at par with the regular
employees.

The Court held the payment of fixed salary to the temporary employees less than the minimum
payable to regular employee was violative of the principle of equal pay for equal work and was to
be condemned.

(X) Mewa Ram Kanojai v. A.I.I.M.S.11

In this case, the petitioner was to the post of teacher coordinator in a project funded by the Indian
Council of Medical Research, which was later taken over by the All India Institute of Medical
Sciences (hereafter referred as AIIMS), and the petitioner continued to hold the post of Teacher
Coordinator. After a period of time, his post was redesigned at a higher post but he continued to
draw salary in his earlier scale of pay. In pursuance to the recommendation of the Third Pay
commission as adopted by AIIMS, the pay scale of his post was revised at a higher level but he
contended before the Supreme Court that the kind of work he was performing and the duties that
were assigned to him were of similar nature as to for the Speech Pathologists and Audiologists,
who were in an even higher scale of pay and since no relief was granted to him, he appeared before
the Supreme Court by means of a writ petition under article 32 of the constitution.

Thus the petitioner’s main grievance was though the Hearing Therapist (as he was) performed the
same duties and functions as Audiologists and Speech Pathologist yet he was discriminated by
paying salary of a lower scale. He also asserted that the qualification prescribed for the aforesaid
posts were almost same and they are working in the same institution under the same employer but
the respondent authorities had practiced discrimination in refusing to accept the petitioner’s claim
for equal pay and thus the respondents failed to implement the Directive Principle of ‘Equal pay
for equal work’ as contained in Article 39(d) of the Constitution in violation of Articles 14 and 16
of the Constitution and claimed relief for the same.

The Court held that though the doctrine of ‘Equal pay for equal work’ was not
expressively declared a fundamental right under the Constitution but Article 39(d) read with the
Articles 14 and 16 of the Constitution declares it a constitutional goal, enjoining the State not to
deny any person equality before law in matters relating to employment including the scales of pay.
It enjoined the State not to treat differently where all things were equal i.e. persons were holding
identical posts and performing identical and similar duties under the same employer.

The Court declared that the doctrine of ‘Equal pay for equal work’ was not abstract one and was
applicable where employees holding the same rank perform similar functions and discharging

11
(1989) 2 SCC 235
similar duties and sharing similar responsibility are treated differently. The Court, however, laid
that while considering the question of application of Principle of ‘Equal pay for equal work’, it was
to be borne in mind that it was open to the State to classify employees on the basis of qualifications,
duties and responsibilities of the posts concerned and if the classification had a reasonable nexus
with the objective sought to be achieved i.e. efficiency in the administration, the State would
be justified in prescribing different pay scale. But if the classification does not stand the test of the
reasonable nexus and the classification is founded on unreal and unreasonable basis it would be
violative of Articles 14 and 16 of the Constitution.

Thus the Court re-emphasised that equality was to be and is to be among equals while unequals are
to be treated differently. The Court also created the test of reasonable nexus, which has been
applied in the subsequent cases and allows the Court to permit that classification or discrimination,
which is sought to achieve efficiency in organisation but also is in conformity to the principles of
reasonability and justification.

(XI) V. Markendeya V. State of Andhra Pradesh12

In the following case, the appellants were the members of the Andhra Pradesh Engineering
Subordinate Service as supervisors in category 1 of the Engineering Branch, which included
officers such as Supervisors, Overseers, etc. The Supervisors were recruited by direct
recruitment as well as by promotion from amongst the Overseers and their cadre included
engineering degree and diploma holders while both perform the same duties and functions. On
recruitment to the service of supervisors a graduate supervisor was granted higher starting salary
than non-graduate supervisors and to make it mandatory, a lower pay scale was prescribed for the
non-graduate supervisors. The non-graduate supervisors, who were aggrieved by this scale,
challenged its validity on grounds of discrimination in prescribing two different scales of pay for
same type of work. The State Government contested their case as that the graduate supervisors and
diploma supervisors always remained separate and were never fused into one service. It also stated
that though the two classes of employees discharged the same functions and carried out similar
duties, but the State was justified in prescribing different pay scales as in the basis of difference in
the educational qualifications

The Supreme Court in this case held that the purpose of Article 39(d) was to fix certain social and
economic goals for avoiding any discrimination amongst the citizens doing similar work in matters
relating to pay. The principle of ‘equal pay for equal work’ is not an abstract one; it is open to the
State to prescribe different scales of pay for different cadres having regard to nature of duties,

12
(1989) 3 SCC 191
responsibilities and educational qualifications. Where two classes of employees perform identical
or similar duties and carrying out the same functions with the same measure of responsibility
having same academic qualifications, they would be entitled to equal pay. If the State denied them
equality in pay, its action would be violative of Articles 14 and 16, and the Court will strike down
the discrimination and grant relief to the aggrieved employees. But before such relief was granted
the Court must consider and analyze the rationale behind the State action in prescribing two
different scales of pay. The Court laid the adjudication of discrimination and held that if on the
analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and
educational qualifications required for the relevant posts the Court found that the classification
made by the State in giving different treatment to the two classes of employees was founded on
rational basis having nexus with the objects sought to be achieved, the classification must be
upheld. Principle of equal pay for equal work was to be granted only after it was demonstrated
before the court that invidious discrimination was practiced by the State in prescribing two different
scales for the two classes of employees without any reasonable classification for the same.
Subsequently the appeal was dismissed the order of the state was held as valid and applicable.

(XII) Harbans Lal v. State of Himachal Pradesh13

In this case, the petitioners were carpenters of 1st and 2nd grade employed at a Handicraft
Corporation owned by State of Himachal Pradesh, termed as daily rated employees and were paid
remuneration, which was less than that of regular employees. They appeared before the Supreme
Court for the enforcement of their fundamental right to have equal pay for equal work,
demanding payment in terms paid to their counterparts in regular services. They also sought
regularization of their services with the benefits of pension, gratuity, etc.

The Corporation, in turn, resisted the petitioners' claim by stating that there were no regular
employees of the petitioners' categories in the said establishment and therefore the question of
payment to the petitioners i.e. the pay admissible to regular employee did not arise at all. However
the petitioners retaliated by stating that though there were no permanent employees in their
establishment, but the pay scale of the permanent employees in other establishments under the
same government was much higher and they were entitled for the same.

Herein, the Court held that a claim for equal pay could only be sustained if the
discrimination made was within the same establishment owned by the same management
and a comparison could not be made with their counter parts in other establishments in different
geographical locations, though it was owned by the same master.

13
(1989) 4 SCC 459
The court declared that the principle of Equal pay was to depend upon the nature of the work done
and was not to merely judged by the volume of the work and there could be qualitative differences
in the type of work undertaken and the responsibility. The Court held that though the functions
would be same but the responsibilities were different and it was not to be denied that the difference
is a matter of degree and that there is an element of value judgment by those who are charged with
the administration in fixing the scales of pay and other conditions of service. So long as such value
criterion has a rational nexus with the object of differentiation, such differentiation will not amount
to discrimination. The Court directly stating the relationship of laid down that equal pay for equal
work is a concomitant of Art. 14 of constitution and it follows naturally that equal pay for unequal
work will be a negation of that right.

Commenting on the case, the Court held that it was to be noted that the petitioners were carpenters
and a form of craftsman and merely by the general description of their job, one could not come to
the conclusion that every carpenter or craftsman was equal to the other in performance work. The
two jobs by the mere nomenclature or by the volume of work performed could not be rated as equal
as it was not a mere comparison of physical activity. It required considerations of various
dimensions related to the job such as the accuracy of the worker, the dexterity entailed etc. It could
not be evaluated by normal parameters and therefore the Court left it to be evaluated and
determined by an expert body and accordingly dismissed the petition.

Thus the judgment pronounced was novel on two grounds. Firstly the Court held that employees
working in different establishments of the same owner could not hold the plea of equal pay for
equal work and secondly the court accepted its constrains regarding the assessment of skill of
the employees.

(XIII) Federation of All India Customs and Central Excise Stenographers v. Union of India14

In this case, a petition for seeking parity in pay scales was filed before the Supreme Court. The
petitioners were personal assistants and stenographers attached to the heads of the Customs and
Central Excise Departments under the Ministry of Finance. They asserted that they were
discriminated vis-à-vis personal assistants and stenographers attached to the joint secretaries and
officers above them in the Ministry. They contended that the type of work was the same and in fact
they had more work to be done. The Respondents in return emphasized that the difference in the
functional requirements of the work done was one of the points for such discrimination. The
respondents also stated that while devising the pay-scales of various posts and categories,
the degree of skill, experience involved, training required, responsibility taken, strain, fatigue,
risk and confidentiality undertaken, mental and physical requirements were factors borne in

14
(1988) 3 SCC 91
mind. The Respondent also emphasised that though the duties and works were identical between
the petitioners and their counterparts attached to the Secretaries in the Secretariat, their functions
were not identical with regard to their duties and responsibilities.

The Supreme Court held that ‘Equal pay for equal work’ is a fundamental right. But equal pay must
depend upon the nature of the work done and it cannot be judged by the mere volume of work.
There may be qualitative difference as regards reliability and responsibility and thereby the
question of discrimination was not to be decided in isolation.

The Court re-emphasised that equal pay for equal work was a concomitant of Article 14 of the
Constitution and it naturally followed that equal pay for unequal work was a negation of that right.
It was also held that ‘Equal pay for equal work’ was not a mere demagogicslogan but

a constitutional goal which could be attained through constitutional remedies i.e. by the
enforcement of constitutional rights. This Court reiterated that in addition to the principle of
'equal pay for equal work', the pay structure of the employees of the Government was also to reflect
many other social values. The principle of ‘Equal pay for equal work’ was not an abstract doctrine
and was even to be applied to government servants performing similar functions and having
identical powers, duties and responsibilities.

The Court also took a great step by lying down that the interpretation of Article 39(d) was to be
read in the Fundamental Rights, under Articles 14 and 16 of the Constitution. So the principle of
equal pay for equal work, though not expressly declared by our Constitution to be a fundamental
right, was a constitutional goal. Construing Articles 14 and 16 in the light of the Preamble and
Article 39(d), the Court laid that the principle of

‘Equal pay for equal work’ was deducible from those articles and was to be applied to cases of
unequal scales of pay, which were based on no classification or irrational classification. The Court
pronounced that Art.14 strikes at the arbitrary action of the State and insures fairness and equality
of treatment. However Art. 14 permit reasonable classifications for the purpose of legislation for
administrative mandate. But the classification must be founded on intelligible basis which
distinguishes persons or things grouped together from those who were left out of the group and
that differentia was to have a rational nexus with the object to be achieved by the differentiation
made in the statute or order in question.

(XIV) Grih Kalyan Kendra Workers Union v. Union of India15

15
AIR 1991 SC 1173
In this given case, a petition was filed under Art. 32 of the Constitution to direct the respondents to
pay regular pay scales in parity with other employees performing similar work under the Union
of India under other Departments. The Petitioner was an organization working under Ministry of
Home Affairs and its employees were classified as regular and temporary staff, where regular
employees drew salaries in regular pay- scale as other Central Government employees whereas the
employees who employed on ad hoc basis worked for an honorarium and their services were
terminable at any time at the sweet will of the officers. The petitioner asserted that its employees
were paid low wages and their salaries were far less than what was paid to the employees doing
similar nature of work in other organizations under the same government. The respondents asserted
that it was a welfare association and there was no intention to provide regular employment. It
contended that employees working in the Kendra were not regular employees and the duties
performed by them were not comparable to any of the employees under other Departments.

It was held by the Supreme Court that Equal Pay for Equal Work has assumed the status of a
fundamental right in service jurisprudence having regard to the constitutional mandate of equality
in Articles 14 and 16 and was applicable in all fields of employment where there was
discrimination on terms of pay under similar conditions of work. The Court held that there was no
discrimination being followed in the organisation and dismissed the petition.

(XV) State of Andhra Pradesh v. G. Sreenivasa Rao16

In this case, due to the revision of pays, the pay of a class of employees in the lower cadre was
increased and incidentally they surpassed the pay scales of those higher in the hierarchy, who had
been promoted on the basis of seniority to that post. The State of Andhra Pradesh filed the appeal to
the Supreme Court against the decision of the High Court, which held the revision to be violative of
Art. 39(d).

The primary question before the Supreme Court was whether the payment of less salary to a senior
than his junior in the same cadre having the same pay scale was a violation of the principle of
“equal pay for equal work.” The Court held that ‘Equal pay for equal work’ did not mean that all
the members of a cadre were to receive the same pay irrespective of their seniority, source of
recruitment, educational qualifications and various other ingredients of service and ordinarily grant
of higher pay to a junior would ex facie be arbitrary but if there were justifiable grounds in doing so
the seniors could not invoke the equality doctrine. However, the differentia on these grounds would
to be based was on intelligible criteria which had a rational nexus with the object sought to be
achieved. The Court thereby held that it would allow a discrimination to prevail if the purpose of

16
(1989) 2 SCC 290
the distinction so made coincided with the interests of the society or it was sought to classify on
grounds of other qualifications but only on they being reasonable and intelligible.

EQUAL PAY FOR EQUAL WORK: AN INTERNATIONAL PERSPECTIVE

The Concept of equal pay for equal work has a wide appreciation all over the world and is
recognized by a number of nations in their Constitutions itself. The Constitution of United
Kingdom recognizing the right of the weaker sex [females] to command equality of pay under
Article 4 clause 2 says that “women employed by the same employer can claim the same pay as
men for equal work of equal value. This right also applies to work which is the same or broadly
similar or work which is judged equal by a job evaluation scheme. The same right applies to men.”
Thus, though this provision is similar to Art. 39(d) of the Indian Constitution on many aspects, it
also recognizes the right of male workers to apply for equality of pay whereas in Indian context, it
has to be said (as according to the objects and reasons of the Equal Remuneration Act, 1976) that
the provision is tilted more towards the females. Thus the English Constitution holds a greater
view while the Indian Constitutional provision can be said to be one of generality.

The Concept of equality of payment for equal work has also been elaborated in The Universal
Declaration of Human Rights which was adopted by the General Assembly of the United Nations
on December 10, 1948. Article 23(2) of the Declaration specifically asserts, “Everyone without any
discrimination has the right to equal pay for equal work.” This is an even greater nomenclature of
the entire concept and includes and debars all types of distinctions and classifications. It only states,
everyone i.e. in entire society, each one has a right to claim equality of pay. Thus we find that the
concept of equality of pay is accepted all over the world through the medium of United Nations and
it in turn comes out to be a universally recognized concept.

The principle of ‘equal pay for equal work ‘is also expressly recognized by almost all socialist
systems of law, the prime examples of which can be cited as Section 59 of the Hungarian Labour
Code, Clause 2 of section 111 of Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40
of the Code of German Democratic Republic, Para 2 of Section 33 of the Rumanian Code etc.

There have been made a number of steps, and will be made, to adopt the concept in its entirety. The
prime example can be The Convention Concerning Equal Remuneration for Men and Women
Workers for Work of Equal Value, organized and held in 1951 and adopted by the General
Conference of the International Labour Organisation on June 29, 1951. Article 2 of that Convention
provides that each Member shall, by means appropriate to the methods in operation for
determining rates of remuneration, promote and, in so far as is consistent with such methods,
ensure the application to all workers of the principle of equal remuneration for men and women
workers for work of equal value.

Thus it is explicitly clear that the concept of equality is prevalent vividly and widely in the
International Scenario and Indian Constitution keeps in conformity to them. Here, the conditions of
the international society are all the more important as it is in conformity with these principles that
the Supreme Court of India evaluates and adjudges the concept and extends its scope as
according to the conditions prevalent in the International Scenario.

CONCLUSION

The concept of ‘Equal pay for equal work’ has been an essential ingredient of the notion of equality
and remains to be a guiding light for establishment of an egalitarian society in India as well as in
the entire International arena. The topic itself is so vast and diverse is in this regard as it has been
interpreted and incorporated by various social and legal systems and Supreme Court of India in
particular.

This apex institution has dealt extensively with the cases relating to this doctrine of ‘Equal pay for
equal work’. It has laid down extensive guidelines in regard to application of this concept while
keeping in view the purpose for which this doctrine was conceived. That purpose basically being to
avoid discrimination on grounds of sex in the payment of remuneration, the Equal Remuneration
Act 1976 was instituted. Besides the application of the Act in its strict sense, time and again the
apex institution has laid the Act to be implemented in most liberal manner, extending its scope to
all institutions, establishments and organizations and has almost curbed that general practice
of discrimination which was earlier followed extensively.

As the fact remains, Supreme Court is always willing to entertain any other interpretation of
the said concept if it finds so in the interest of the society at large. Not only in India but in other
nations as well, as described in earlier chapters, this concept has gained recognition and it will not
be too late, in my view, that the people will understand its implications and while demanding
their rights, totally mitigate the discrimination for which all these provisions are laid down.

However, the Supreme Court has held the doctrine of equal pay for equal work as ancillary and
subordinate to Art. 14 i.e. it is not independent in itself and to claim application, it has to take the
aid of other fundamental rights among which, Art. 14 is the prime authority in this regard. Thus
though the Constitution envisages equality of pay, it is to come into effect only when other
provisions make it compatible to be bought to force.
The principle of equality of pay, as adjudged by the Supreme Court have come to mean that, any
sort of discrimination is not to be appreciated and each and every attempt in the direction of making
a violation of it, whether explicit or implicit will be negated and held to be arbitrary. As the case
arrive, the Supreme Court lays down a new line of thought, basing its judgments on the
contemporary social conditions and thus in a way keeps and fulfils its task as of the custodian of
fundamental rights in India territory.