Right to ‘equal pay for equal work’ is constitutionally enforceable: HP HC - The Daily Guardian
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Right to ‘equal pay for equal work’ is constitutionally enforceable: HP HC

‘In these circumstances, the writ petition is allowed and respondents are directed to grant the pay scale of Assistant Librarian to the petitioner as was given to one Sh. P.K. Kaushal with all consequential benefits till his retirement in the year 2007 and thereafter his pension be fixed accordingly. The writ petition is allowed along with costs of Rs. 10,000/- as the petitioner was remained in the Courts for long years of his life including his retirement for more than 13 years.’

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While leaving not even an iota of doubt on the key issue of whether the right to ‘equal pay for equal work’ is constitutionally enforceable, the Himachal Pradesh High Court in an extremely commendable, cogent, composed and convincing judgment titled Rattan Lal Bharadwaj vs State of HP in Civil Writ Petition (Original Application) No. 6133 of 2019 that was reserved on December 16, 2021 and then delivered recently on January 6, 2022 has held unambiguously that the provisions of ‘equal pay for equal work’ envisaged under Article 39(d) of the Constitution is a constitutionally enforceable right. Of course, the single Judge Bench comprising of Hon’ble Justice Chander Bhusan Barowalia observed without mincing any words quite explicitly that, “Article 39(d) of the Constitution of India provides for equal pay for equal work. This right of the person for equal pay for equal work is recognized as a fundamental right by various pronouncements of the Apex Court and the law is settled that the right to equal pay for equal work is a constitutional enforceable right.” This key observation was made while adjudicating upon a writ petition filed by the petitioner seeking equal pay at par with another Librarian and Assistant Librarians of the Education Department.

To start with, this learned, laudable, landmark and latest judgment authored by a single Judge Bench comprising of Hon’ble Justice Chander Bhusan Barowalia sets the ball rolling by first and foremost putting forth in para 1 that, “By way of present writ petition, the petitioner has prayed for the following substantive reliefs:

“(i) That impugned letter date 01.09.2009, Annexure A-15, and order dated 10.10.2014, Annexure A-17, denying pay parity to the applicant at par with another Librarian, Sh. P.K. Kaushal of the respondent department and Assistant Librarians of Education Department may be quashed.

(ii) That respondents may be directed to allow to the applicant pay scale of Rs. 700-1200 w.e.f 201.12.1983, pay scale of Rs. 1640-2925 w.e.f from 01.01.1986 with further corresponding revision from 01.01.1996 and 01.01.2006, with all consequential benefits.

(iii) That as a result of revision of pay scale of applicant w.e.f 20.12.1983, he may be held entitled to revisions of his retrial benefits on account of his retirement from service as Librarian 31.12.2007 with all consequential benefits.””

While elaborating in brief, the Bench then lays bare in para 2 that, “The petitioner has, inter alia, assailed impugned order dated 1.9.2009, (Annexure A-15), whereby petition (CWP No. 1063 of 2010) filed by him was allowed by this Court, vide judgment dated 2.1.2012, Annexure A-16, with a direction to the respondent-department to consider the case of petitioner in the light of judgments passed by this Court in P.K. Kaushal Vs. State of HP. It is further averred in the petition that when the case of the petitioner was not considered, he was constrained to file execution petition bearing No. 152 of 2014. In reply to the execution petition, respondent-department rejected the claim of the petitioner. Consequently, the execution petition was disposed of by this Court reserving liberty to the petitioner to challenge the aforesaid rejection order. Hence the present petition.”

Needless to say, the Bench then states in para 3 that, “I have heard Mr. Dilip Sharma, learned Senior Counsel for the petitioner and Mr. Arvind Sharma, learned Additional Advocate General and also gone through the records of the case minutely.”

On the one hand, the Bench states in para 4 that, “Mr. Dilip Sharma, Learned Senior Counsel for the petitioner has argued that the respondents have not given the equal pay scale to the petitioner, as is given to the similarly situated person(s) in the Technical Education Department.”

On the contrary, the Bench then brings out in para 5 that, “On the other hand, Mr. Arvind Sharma, learned Additional Advocate General has argued that the Education Department has different pay scales than that of Technical Education Department and so the pay scale cannot be granted to the petitioner, as the Assistant Librarians who was granted the pay scales equivalent to the Education Department and who was working in the Technical Department was earlier working in the Education Department and that’s why the scale was given.”

Quite significantly, the Bench then postulates in para 6 that, “To appreciate the arguments, I have gone through the petition in detail. That in or around April, 1968 the Department of Technical Education was separated from the Department of Education and as per Memorandum dated 22.7.1970, pay scales were revised in Himachal Pradesh w.e.f. 1.2.1968. Consequently, in the Department of Education, the pay scale of Librarians was revised from Rs. 150- 300 to Rs. 220-500/- and that of Librarians (Community Centre) was revised from Rs. 60-90 to Rs. 125-300/-. The scale of Assistant Librarians was revised from Rs. 80-175/- and Rs. 80-150/- to Rs. 125- 300/-. In the Department of Technical Education, the pay scale of Librarians was revised from Rs. 120-200/- and Rs. 60-175 to 125- 300/-. It is also averred in the petition that prior to 1973 there were no statutory Rules governing Recruitment & Promotion for the post of Librarians/Assistant Librarians etc. Even in the matter of their pay scales, there was no parity. The Recruitment & Promotion Rules were notified on 11.10.1973 for the post of Librarians in the Department of Technical Education and the Recruitment & Promotion Rules were also notified on 24.12.1973 for the post of District Librarian and Assistant Librarians etc. in the Department of Education. The essential qualification for the post of Librarian in the Technical Education was prescribed as Matric with certificate in Library Science, but the scale was prescribed as Rs. 160-400/- for the one post and Rs. 125-300 for the other post of Librarian. In the Memorandum dated 27.8.1975, the scale of Rs. 160-400/- for the post of Librarian in the Technical Education Department was also revised to Rs. 125-300/-.”

Be it noted, the Bench then hastens to add in para 7 stating aptly that, “One of the ground taken by the petitioner is that vide judgment dated 26.3.2009, Annexure A-13, CWP(T) No. 2578/2008 filed by Sh. P.K. Kaushal, who was also working as Librarian in Technical Education Department was allowed by this Court by holding that he was entitled to the pay scale at par with the Assistant Librarians in Education Department with all consequential benefits.”

Most commendably, most remarkably and also most significantly, what forms the real crown of this notable judgment is then encapsulated best in para 8 wherein it is held that, “Article 39(d) of the Constitution of India provides for equal pay for equal work. This right of the person for equal pay for equal work is recognized as a fundamental right by various pronouncements of the Apex Court and the law is settled that the right to equal pay for equal work is a constitutional enforceable right. Now the duties and responsibilities of the Assistant Librarians, who were given the higher pay scale and who were working in the Technical Education Department are the same to that of the petitioner and so the petitioner cannot be denied the equal pay for equal work. The petitioner is protracted litigation since long and he has retired from the service in the year 2007 and in these circumstances it is a fit case where the respondents are required to be directed to grant equal pay for equal work and to grant the scale of Assistant Librarian as was given to other similarly situated persons in P.K. Kaushal’s case.”

Finally, the Bench then concludes by holding in the last para 9 that, “In these circumstances, the writ petition is allowed and respondents are directed to grant the pay scale of Assistant Librarian to the petitioner as was given to one Sh. P.K. Kaushal with all consequential benefits till his retirement in the year 2007 and thereafter his pension be fixed accordingly. The writ petition is allowed along with costs of Rs. 10,000/- as the petitioner was remained in the Courts for long years of his life including his retirement for more than 13 years. Pending miscellaneous applications, if any, also stand disposed of.”

To sum it up, the single Judge Bench comprising of Hon’ble Justice Chander Bhusan Barowalia of Himachal Pradesh High Court at Shimla has minced absolutely no words to make it known loud and clear to one and all that Article 39(d) of the Constitution of India provides explicitly for equal pay for equal work. This right of the person for equal pay for equal work is recognized quite distinctly as a fundamental right by various pronouncements of the Apex Court and the law is settled that the right to equal pay for equal work is a constitutional enforceable right. We have already discussed all this as herein aforesaid. So it now needs no Albert Einstein to conclude that the right to ‘equal pay for equal work’ as envisaged under Article 39(d) of the Constitution is legally enforceable and is a constitutionally enforceable right. No denying it!

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk

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The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.

The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.

The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.

The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.

The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.

respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.

The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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