Nityananda Mohapatra Vs Nalco, Bhubaneswar

B. Issue a writ in the nature of Mandamus or any other appropriate writ(s), order(s) and direction(s) to the Opp. Party No. 1 to extend the differential Gratuity amount of the petitioner as per 7^th Pay Commission report taking into account Letter dt.14.06.2018 vide Annexure-3 with appropriate interest till the date of actual payment; AND

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C. Pass any order/orders which the Hon’ble Court may deem fit and proper.

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And for this act of kindness the petitioner as in duty bound shall ever pray.”

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3. It is contended that while continuing in the School run by Siksya Bikash Samiti, Petitioners though retired from their services on attaining the age of superannuation, but in view of the letter issued by Kendriya Vidyalaya Sangathan on 14.06.2018 under Annexure-3, Petitioners became entitled for revision of pension as per 7^th CPC.

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3.1. It is contended that as per the recruitment and conditions of service

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Rules so issued by the School in question under Annexure-1, the service condition applicable to teaching and non-teaching staff of the Central School of Kendriya Vidyalaya Sansthan was made applicable to the staff of Petitioners’ school in terms of the joint meeting held on

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12.11.1993 so chaired by the Chairman –cum-Managing Director, National Aluminium Company Ltd. –Opp. Party No. 1.

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3.2. It is contended that since in the joint meeting held in between Opp. Party No. 2 and Opp. Party No. 1 on 12.11.1993, teaching and nonteaching staff of the Petitioners’ School i.e. Saraswati Sishu Vidya Mandir functioning in NALCO Township became entitled to get similar benefits, as is applicable to the teaching and non-teaching staff of Central School of Kendriya Vidyalaya Sangathan, in view of the notification issued by the Kendriya Vidyalaya Sangathan on 14.06.2018 under Annexure-3, Petitioner also became entitled for revision of pension as per 7^th CPC.

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3.3. However, on the face of such communication issued by Kendriya Vidyalaya Sangathan on 14.06.2018 under Annexure-3 and the decision taken by Opp. Party No. 2 and Opp. Party No. 1 in the joint meeting held on 12.11.1993, Petitioners when were not extended with the benefit of revision of pension in terms of Annexure-3, they approached Opp. Party No. 4 vide Anenxure-4 and subsequently Opp. Party No. 1 vide Annexure-5 with a request to revise the pension and other entitlements in terms of the letter issued by Kendriya Vidyalaya Sangathan on 14.06.2018 under Annexure-3.

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3.4. It is contended that on the face of such request made by Petitioners under Annexure-4 and 5 when no decision was taken or communicated, Petitioners are before this Court in the present batch of writ petitions. It is accordingly contended that appropriate direction be issued to Opp. Party Nos. 1 & 2 to consider the grievance as raised by the Petitioners under Annexure-4 & 5 within a stipulated time period.

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4. Pursuant to the order passed by this Court on 04.03.2024, Mr. T. Mishra, learned counsel entered his appearance on behalf of Opp. Party No. 1 by filing Vakalatnama in Court in each of the cases. Mr. Mishra, learned counsel appearing for Opp. Party No. 1 contended that even though Petitioners continued in the School run by Opp. Party No. 2 in the name and style of Saraswati Sishu Vidya Mandir, NALCO Township-Opp. Party No. 3, but Petitioners are not employees of NALCO and no claim can be raised and/or considered by Opp. Party No. 1. If Petitioners have got any grievance with regard to such revision

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of pension in terms of the letter issued by Kendriya Vidyalaya Sangathan under Annexure-3 dtd.14.06.2018, let them make appropriate application in that regard before Opp. Party Nos. 2 & 3.

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4.1. Mr. Mishra further contended that in view of the decision of the

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Hon’ble Apex Court so reported in (2014) 6 SCC 756 (National

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Aluminium Company Limited & Ors. Vs. Ananta Kishore Rout &

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Ors.) , Hon’ble Apex Court clearly held that NALCO cannot be taken as the employer of the Petitioners, who were allowed to continue in the School functioning under Opp. Party No. 2. Hon’ble Apex Court in Para 30, 31 & 34 has held as follows:-

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“ 30. No doubt, there may be some element of control of NALCO because of the reason that its officials are nominated to the Managing Committees of the schools. Such provisions are made to ensure that schools are run smoothly and properly by the society. It also becomes necessary to ensure that the money is appropriately spent. However, this kind of “remote control” would not make NALCO the employer of these workers. This only shows that since NALCO is shouldering and meeting the financial deficits, it wants to ensure that money is spent for rightful purposes.

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31. It was argued that the Managing Committee cannot be the employer as it would lose its identity on the termination of agreement between N ALCO and SVM Society. However, even that by itself cannot be the determinative factor. When the agreement was earlier entered into between N ALCO and CCM Trust, and staff was appointed in the school by CCM Trust, N ALCO ensured that such staff is taken over by SVM Society. For this purpose a specific clause is provided in the agreement between N ALCO and SVM Society which reads as under:

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“That if any of the parties hereto at any time wishes to terminate this arrangement, it may do so on giving of at least six months' prior notice in writing to the other party, of such an intention, provided that such termination shall be effective only at the close of the academic session. Provided further that in the event of such termination, the services of the staff employed by the school shall, subject to any agreement to the contrary between the two parties hereto, be terminated in accordance with the terms of their appointment in Chinmaya Vidyalaya, Damandjodi.”

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xxx xxx xxx

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34. Markandey Katju, J. in his concurring and supplementing judgment in S.C. Chandra [S.C. Chandra v. State of Jharkhand,

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(2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897] dwelt on this very aspect in the following manner:— (SCC pp. 290-91, paras 24-28)

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“24. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s e.g. Dhirendra Chamoli v. State of U.P. [(1986) 1 SCC 637 : 1986 SCC (L&S) 187] , Surinder Singh v. CPWD [(1986) 1 SCC 639 : 1986 SCC (L&S) 189] , Randhir Singh v. Union of India [(1982) 1 SCC 618 : 1982 SCC (L&S) 119] , etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli case [(1986) 1 SCC 637 : 1986 SCC (L&S) 187] this Court granted to the casual, daily-rated employees the same pay scale as regular employees.

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25. It appears that subsequently it was realised that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. government employees of one State were claiming parity with government employees of another State.

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26. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.

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27. Thus, in State of Haryana v. Tilak Raj [(2003) 6 SCC 123 : 2003 SCC (L&S) 828] it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily-rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.

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28. In State of Haryana v. Charanjit Singh [(2006) 9 SCC 321 : 2006 SCC (L&S) 1804] discussing a large

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number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.” (emphasis in original)

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4.2. It is accordingly contended that in view of the decision of the Hon’ble Apex Court as cited (supra), Opp. Party No. 1 is not liable to consider the claim of the present Petitioners as made under Annexure-5.

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5. To the submission made by Mr. Mishra, learned counsel appearing for Opp. Party No. 1, Mr. S.P. Das, learned counsel for the Petitioners contended that Petitioners were allowed to continue in the school run in the name and style Saraswati Vidya Mandir under the aegis of Sikshya Bikash Samiti – Opp. Party No. 2 and Opp. Party No. 2 was so allowed to run the School in NALCO Township by virtue of the agreement entered in between Opp. Party No. 2 and NALCO on 18.06.1990. Therefore, claim of the Petitioners as made in the writ petition lies both to Opp. Party No. 2 and Opp. Party No. 1.

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6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Opp. Party No. 2 runs the School in the name and style Saraswati Vidya Mandir, NALCO Township, Damanjodi and Saraswati Vidya Mandir, NALCO Nagar, Angul by virtue of an agreement entered in between Opp. Party No. 2 and NALO Ltd., Bhubaneswar on 18.06.1990. As further found in the joint meeting held on 12.11.1993 chaired by Opp. Party No. 1, it was decided that the conditions of service applicable to the teaching and non-teaching staff of the Central Schools for Kendriya Vidyalaya Sangathan will apply mutandis to the staff of the School run by Opp. Party No. 2 in the name and style of Saraswati Vidya Mandir in NALCO Township. But no document has been filed showing execution of any agreement in between the School and Opp. Party No. 1 on 18.06.1990 and so also the proceeding of the joint meeting held on 22.11.1993. Therefore, placing reliance on the decision in the case of Ananta Kishore Rout as cited (supra), this Court is unable to issue any direction to Opp. Party No. 1 for consideration of the representation so filed by the Petitioners vide Annexure-5. It is open for the Petitioners to pursue the claim so made under Annexure-4 before the School authority in which this Court expresses no opinion.

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7. All the writ petitions are accordingly disposed of.

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(Biraja Prasanna Satapathy) Judge

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Orissa High Court, Cuttack Dated the 23^rd of April, 2024/Sneha

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Signature Not Verified