Fact Check: Why Fears That SC Observation Will Widen Gender Pay Gap Are Baseless

Photo credit: Illustration by Simone Golob/Ikon Images/ newstatesman.com

New Delhi: The apex court observed recently that a government employee cannot demand pay parity only on grounds of similarity in designation and quantum of work. The bench, comprising Justices Indira Banerjee and JK Maheshwari, made the observation while allowing an appeal against the orders of the Madhya Pradesh High Court ruling that a petitioner was entitled to the University Grants Commission (UGC) pay scale from the initial date of her employment.

The Supreme Court observation drew sharp reactions on social media. The judges were criticised at length for denying citizens equal pay and livelihood opportunities. Many questioned its impact on legal provisions for equal pay such as the Code on Wages 2019 which replaced the Equal Remuneration Act, 1976. Others protested that it would widen the gender pay gap. (The Code on Wages aims to regulate and prevent gender and caste discrimination in the payment of wages and bonuses across industries.) There were questions on why pay parity should be denied to those with the same designation and quantum of work. 

However, a close scrutiny of the observation by Behanbox showed that these misgivings are baseless and stem from a hasty reading of media headlines. First, this is not a judgment but only an observation of the apex court. Even more importantly, the case does not relate to issues of gender pay gap, equal remuneration or other issues raised on digital platforms.

Here are the facts of the case that landed before the MP High Court: the respondent-writ petitioner, Seema Sharma, was employed as a librarian-cum-museum assistant at the Government Dhanvantri Ayurvedic College in Ujjain run by the state’s Ayush department that is dedicated to alternative medicine. She claimed that she was entitled to the UGC pay scale as applicable to senior college librarians in the state’s higher education department funded by the UGC, as per the Madhya Pradesh Education Service (Collegiate Branch), Recruitment Rules, 1990.

The Supreme Court observed that the respondent-writ petitioner is governed by the Madhya Pradesh Public Health (Indian System of Medicine and Homeopathy), Class III, Clerical and Non-Clerical Services Recruitment Rules, 1987. And thus, her claim to the UGC pay scale was baseless. Institutions such as ayurvedic colleges under the government’s Ayush department, the court pointed out, do not receive any financial aid from the UGC. 

Simply put, the court’s observation did not support discriminatory wages or gender pay gap but only pointed to employees being governed by different employment rules under different departments of state governments.

Must be ‘similarly circumstanced in every way’

The apex court said that given a set of employment rules, the eligibility criteria and the duties have to be the same in every respect for a valid pay parity plea.

Referring to an earlier judgment of the court in State of Madhya Pradesh & Ors. v. Ramesh Chandra Bajpai [(2009) 13 SCC 635 (Para 18)], the apex court said that “the doctrine of equal pay for equal work could only be invoked when the employees were similarly circumstanced in every way. Mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales. The Court had to consider all the relevant factors such as the mode of recruitment, qualifications for the post, the nature of work, the value of work, responsibilities involved and various other factors”.

SC judges also observed that pay scales are a matter of policy and courts should interfere only in exceptional cases “where there is discrimination between two sets of employees appointed by the same authority, in the same manner, where the eligibility criteria is the same and the duties are identical in every aspect”.

Kanishka Singh is a legal journalist at Behanbox. She is a lawyer and recently completed her master’s in law from NLSIU. Her interests include law, gender, and politics, with a special focus on intersectional theory. She strives to bring a multidisciplinary framework to the understanding of the law.

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