Full Judgment Text
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PETITIONER:
P. SAVITA S/O SHRI P.L. SAVITA
Vs.
RESPONDENT:
UNION OF INDIA, MINISTRY OF DEFENCE (DEPARTMENT OF DEFENCE P
DATE OF JUDGMENT01/05/1985
BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
SEN, A.P. (J)
CITATION:
1985 AIR 1124 1985 SCR Supl. (1) 101
1985 SCC Supl. 94 1985 SCALE (1)1091
CITATOR INFO :
D 1988 SC1291 (9)
R 1989 SC 19 (26)
RF 1989 SC 30 (3)
F 1989 SC1256 (4)
C 1989 SC1308 (8,10)
ACT:
Constitution of India, Article 14 and 39(d)-Equal pay
for equal work-Senior Draughtsmen doing the same work and
discharging similar functions and duties-Clarification into
two groups on the basis of seniority with two different pay
scales-Whether discriminatory.
Civil Service-Government servant doing some work and
discharging similar duties-Classification based on seniority
with two different pay scales-Whether legal and justified.
HEADNOTE:
Senior Draughtsmen in the Ordnance Factories under the
Ministry of Defence are either directly recruited or
promoted from the post Draughtsmen. At all relevant times
all the Senior Draughtsmen throughout the above
establishments were drawing the same pay scale of Rs. 205-
280. While revising the pay-scale of various categories of
employees, the Third Pay Commission recommended that the
Draughtsmen should be placed in the scale of Rs. 330-560.
The Pay Commission also recommended that the Senior
Draughtsmen should be divided into two groups and half the
number of posts of Draughtsmen in the above organisations on
the present pay-scale of Rs. 205-280 be placed in the
revised scale of Rs. 425-700 on the basis of seniority and
the remaining half in the revised scale of Rs. 330-560.
Pursuant to the aforesaid recommendation, the Government of
India by its Order dated 1st July, 1978 directed that only
those senior Draughtsmen who were holding that post on 31st
December, 1972 would be given the senior scale of pay i.e.
Rs. 425-700.
The appellants who are senior Draughtsmen made
representation to the Government of India against this
grouping by the Third Pay Commission. As the representations
were not accepted, the appellants challenged the Order of
the Government before the High Court in a Writ Petition
contending that all the Senior Draughtsmen did the same kind
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of work and discharged same or similar duties and therefore
there was no justification for distinction being made
amongst the Senior Draughtsmen, providing two different pay-
scales on the basis of seniority. The High Court dismissed
the petition holding that it was open to the Government to
fix two different pay scales for Senior Draughtsmen and that
it was for the Government to decide what pay scale should be
provided to the different classes of employees.
102
Allowing the appeal,
^
HELD: (1) Where all relevant considerations are the
same, persons holding identical posts and discharging
similar duties should not be treated differently. Therefore
the Order passed by the Government of India implementing the
impugned recommendation of the Third Pay Commission dividing
the Senior Draughtsmen into two categories with two
different pay-scales on the basis of seniority violates
Article 14 of the Constitution and is struck down.
Randhir Singh v. Union of India and Ors. [1982] 3
S.C.R. 298, followed.
In the instant case the group of Draughtsmen entitled
to the higher scale of pay is not selected by any process
nor is it based on any merit-cum-seniority basis, but is
based only on seniority-cum-fitness. Moreover, the Senior
Draughtsmen divided into two groups are in the same
Department doing identical and same work. It is not a case
of different grades created on the ground of higher
qualification either academic or otherwise or an entitlement
by any other criteria. Thus the classification between the
two groups of Senior Draughtsmen is without any basis. In
view of the total absence of any plea on the side of the
respondents that the Senior Draughtsmen who are placed in
the advantageous group, do not perform work and duties more
onerous or different from the works performed by the
appellants group, it will have to be held that this grouping
violates Article 14 of the Constitution. [107 E-F]
Kishori Mohanlal Bakshi v. Union of India, A.I.R. 1962
S.C. 1139; State of Punjab v. Joginder Singh, A.I.R. 1963
S.C. 913; Unikat Sankunni Menon v. State of Rajasthan A.I.R.
1968 S.C. 81; State of Mysore and Anr. v. P. Narsingh Rao
A.I.R. 1968 S.C. 349, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3121 of
1981.
From the Judgment and Order dated 28-9-1979 of the
Madhya Pradesh High Court in Misc. Petition No. 408 of 1978.
M.K. Ramamurthi and H.S. Parihar for the Appellants.
s.c. Maheshwari T. V.S.N. Chari and R.N. Poddar for the
Respondents.
The Judgment of the Court was delivered by
KHALID, J. The question involved in this appeal brings
to fore how the equality doctrine embodied in the
Constitution of India is attempted to be flouted by some
authorities under cover of artificial divisions, dividing
persons doing the same work into two
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groups without any justification and denying to one group by
way of pay and emoluments what the other group gets. We do
not propose to examine the width of the quality provisions
contained in Art. 39(d) in all its manifold aspects but
would like to restrict it in its application to the facts of
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this case, in our attempt to see whether the High Court was
justified or not, in declining relief to the petitioners.
Now the facts:
This appeal by special leave is directed against the
Judgment of a Division Bench of the High Court of Madhya
Pradesh at Jabalpur in Miscellaneous Petition No. 408 of
1978, dismissing the petition challenging the Order of the
Government of India accepting the recommendations of the
Third Pay Commission dividing Senior Draughtsmen into two
groups with different pay scales, which according to the
appellants violated Articles 14 and 16 of the Constitution.
The Appellants Nos. 1 to 8 are Senior Draughtsmen in the
Ordnance Factories under the Ministry of Defence, Department
of Defence Production and the Director General of Ordnance
Factories. Appellants Nos. 1 to 5 were promoted on different
dates to the post of senior Draughtsman when they were
working as Draughtsmen. Appellants Nos. 6, 7 & 8 were
directly recruited as Senior Draughtsmen in the Vehicle
Factory, Jabalpur on different dates. Appellant No. 9 is a
registered Association of the Employees working in the
Design/Drawing Office of the Defence Establishments under
the Ministry of Defence, etc.
There are 33 establishments under the Ministry of
Defence Production and Director General of ordnance
Factories, Calcutta. In these establishments, there are two
categories of Drawing Office Staff; (1) Senior Draughtsman
and (2) Draughtsman. Senior Draughtsmen are either directly
recruited or promoted from the post of Draughtsmen. At all
relevant times, all the Senior Draughtsmen throughout the
above establishments, were drawing the same pay scale. The
first and the second Pay Commission set up by the Government
of India, recommended same scales of pay for all the Senior
Draughtsmen.
A Third Pay Commission was set up by the Government of
India under the Chairmanship of Shri Raghubar Dayal, a
retired Judge of the Supreme Court of India and consisting
of three other members. One of the recommendations of this
Pay Commission, related to the scales of pay of Draughtsmen
and Senior Draughtsmen,
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Draughtsmen were to be in the scale of Rs. 330-560 while the
Senior Draughtsmen were divided into two groups with two
scales of pay, Rs. 330-560 and Rs. 425-700. It is this
division of Senior Draughtsmen that was under challenge
before the High Court.
Representations were made by the Petitioner against
this grouping by the Third Pay Commission, and they pleaded
that there should not be any discrimination in the pay-
scales of Senior Draughtsmen as was recommended by the Third
Pay Commission. Similar representations were made by others
also like Senior Rate Estimator, Senior Rate Fixer, Senior
Planner and Supervisor etc. Some representations were
accepted by the Government but not the representations made
by the appellants’ Association. Aggrieved by this unhelpful
attitude of the Government in not accepting their
representation, the appellants moved the High Court under
Article 226 of the Constitution, Their case before the High
Court was that Senior Draughtsmen discharged identical
duties and performed similar work. That being so there was
little or no justification in putting 50% of them in a
higher scale of pay and 50% others in a lower scale of pay.
This grouping was without any intelligible differentia.
The High Court referred to a decision of this Court in
Kishori Mohanlal Bakshi v. Union of India(1) and sought
support from it to deny relief to the petitioners. That was
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a case where the grouping of Income-tax Officers as Class I
and class II with different scales of pay and different
channel of Promotion was questioned. This Court observed in
that Judgment as follows:
"It might very well be that "matters relating to
employment or appointment to any office" in Art. 16(1)
are wide enough to include the matter of promotion.
Inequality of opportunity for promotion as between
citizens holding different posts in the same grade may,
therefore, be an infringement of Art. 16. Thus, if of
the Income-tax Officers of the same grade, some are
eligible for promotion to a superior grade, and others
are not, the question of contravention of Art. 16(1)
may well arise. But no such question can arise at all
when the rules make Income-tax Officers of Class I,
eligible for appointment as Assistant Commissioner, but
make
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Income-tax Officers of Class II eligible for promotion
as Income-tax Officers of Class I but not for promotion
to the post of Assistant Commissioners. There is no
denial in such a case of equality of opportunity as
among citizens holding posts of the same grade. As
between citizens holding posts in different grades in
Government service there can be no question of equality
of opportunity. Art. 16 does not forbid the creation of
different grades in the Government service. The
abstract doctrine of equal pay for equal work has
nothing to do with Art. 14. Art. 14, therefore, cannot
be said to be violated whose the pay scales of Class I
and Class II Income-tax Officers are different though
they do the same kind of work. Incremental scales of
pay can be validly fixed dependent on the duration of
an officers service."
The High Court also referred to the decisions of this
Court in State of Punjab v. Joginder Singh(1), Unikat
Saakunni Menon v. State of Rajasthan(2) and State of Mysore
& Anr. v. P. Narsingh Rao(3) in which cases also certain
grouping of employees were challenged as violative of Art.
14 & 16, which challenge was repelled by the Supreme Court.
The High Court relied upon these decisions and held that "It
is therefore evident that it was open to the Government to
fix two different pay-scales for Senior Draughtsmen," and
that "It was for the Government to decide what pay-scale
should be provided to the different. classes of employees
and simply because they have been provided different pay-
scales that would not amount to discriminations."
The High Court was told that all the Senior Draughtsmen
did the same kind of work and discharged same or similar
duties and that therefore there was no justification for a
distinction being made between the two classes of Senior
Draughtsmen, providing two different pay-scales on the basis
of seniority, Denial of the higher scale of pay to one class
of Senior Draughtsmen, only on the ground of length of
service was, according to the appellants, wrong. The
Government brought in this classification, by its Order
dated 1-7-1978, directing that only Senior Draughtsmen,
holding that post on 31-12-1972, would be given the Senior
scale and not
106
those who did not hold that post on 31-12-1972. This basis,
the appellants, contended was unsupportable. These
contentions did not appeal to the High Court. While
repelling the arguments of the Petitioners, the High Court
observed that "The petitioners are unable to show a single
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authority in support of their contention that all the
persons doing the same work are entitled to same scale of
pay." It is the correctness of this decision that falls to
be decided in this appeal.
Before discussing the factual matrix of the case, we
will refer to the Order passed by the Government of India on
27th January, 1978, which brought into effect this
difference in the pay-scale. The said Order reads as
follows:
"The undersigned is directed to refer to Sl. No.
32 of Part-D, Section I, in the First Schedule to the
Civilians in Defence Services (Revised Pay) Rules, 1973
and to say that the President is pleased to decide
that, as recommended by the Third Pay Commission in
para 81, Chapter 14, of their report, half the number
of posts of Draughtsman in the DGOF Organisation on the
present pay scale of Rs. 205-7-240-8-280 will be placed
in the revised scale of Rs. 425-15-500-EB-15-560-20-700
and the remaining half in the revised scale of Rs. 330-
10-380-EB-12-500-EB-15-560.......................
....On their allocation to the revised scale of Rs.
425-700 and Rs. 350-560, the existing Draughtsman in
the present pay-scale of Rs. 205-280 who are brought on
to the revised scale of Rs 330-560 would continue to
retain their present designation as a personal to them.
The placement of the existing Draughtsman in the higher
revised pay scale of Rs. 425-700 will be on the basis
of seniority, subject to the rejection of the unfit.
Any administrative instruction that may be
considered necessary may be issued by you.
These orders will take effect from 1-1-73."
It is pursuant to this Order that the change in the
emoluments of the petitioners’ group of Draughtsmen was
effected.
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It has to be borne in mind that this differentiation is
not based on any intelligible ground. The group of
Draughtsmen entitled to the higher scale of pay, is not
selected by any process nor is it based on any merit-cum-
seniority basis, but is based only on seniority-cum-fitness.
There is no denial anywhere that both these types of
Draughtsmen do the same work and discharge the same
functions and duties. According to the recommendations of
the Third Pay Commission, a Draughtsman has to get Rs. 330-
10-380-EB-12-500-EB-15-560, while Senior Draughtsman, like
the appellants, who have become so on promotion, will
continue to get the same scale of pay and not the higher
scale of pay. In other words, the promoted persons like the
appellants, are without any monetary benefit to them. The
pay that they would get as Senior Draughtsman, would be the
same as a Draughtsman would get under the Third Pay
Commission. That is, for the same work and same functions,
the appellants would get less pay than the other group of
Senior Draughtsmen. The explanation is that this division is
based on seniority. This cannot be accepted as sufficient to
meet the requirements of law. By seniority, a Senior
Draughtsman will get higher pay with the increments that he
earns proportionate to the number of years he is in service.
Here that is not the case. It is the classification of the
Senior Draughtsmen into two groups, that is responsible for
the higher pay. For this classification, the Government must
be able to satisfy the Court of certain other tests which
are non-existent, in this case, since it is not in dispute
that Senior Draughtsmen, belonging to the two Divisions, do
equal and same work. In view of the total absence of any
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plea on the side of the respondents, that the Senior
Draughtsmen who are placed in the advantageous group, do not
perform work and duties more onerous or different from the
work performed by the appellants group, it will have to be
held that this grouping violates Article 14 of the
Constitution.
The High Court did not have the advantage of a decision
of this Court in Randhir Singh v. Union of India & Ors.(1),
to which one of us was a party, which evolved the equality
doctrine embodied in Article 39(d) and read Article 14 into
it; while considering the complaint of a driver who was
originally in the Army but later employed as a driver
constable in Delhi Police Force under the Delhi
Administration and who was denied the same pay as was
available to the other drivers in the service of the Delhi
Administration. This Court
108
allowed the Writ Petition and directed the concerned
authorities to pay the petitioners in that case, salary at
least equal to the Drivers of the Railway Protection Force.
Disagreeing with the plea, put forward by the Union of India
this Court observed as follows:
"The Counter Affidavit does not explain how the
case of the drivers in the police force is different
from that of the drivers in other departments and what
special factors weighed in fixing a lower scale of pay
for them. Apparently in the view of the respondents,
the circumstance that persons belong to different
departments of the Government is itself a sufficient
circumstance to justify different scales of pay
irrespective of their identity of their powers, duties
and responsibilities. We cannot accept this view. If
this view is to be stretched to its logical conclusion,
the scales of pay of officers of the same rank in the
Government of India may vary from department to
department notwithstanding that their powers duties and
responsibilities are identical. We concede that
equation of posts and equation of pay are matters,
primarily for the Executive Government and expert
bodies like the Pay Commission and not for Courts but
we must hasten to say that where all things are equal,
that is where all relevant considerations are the same,
persons holding identical posts may not be treated
differentially in the matter of their pay merely
because they belong to different departments. Of
course, if officers of the same rank perform dissimilar
functions and the powers, duties and responsibilities
of the posts held by them vary, such officers may not
be heard to complain of dissimilar pay merely because
the posts are of the same rank and the nomenclature is
the same."
This Court however observed that a differential
treatment in appropriate cases can be justified, when there
are two grades based on reasonable grounds, and stated as
follows:
"It is well known that there can be and there are
different grades in a service, with varying
qualification for entry into a particular grade, the
higher grade often being a promotional avenue for
officers of the lower grade. The higher qualifications
for the higher grade, which may be
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either academic qualifications or experience based on
length of service reasonably sustain the classification
of the officers into two grades with different scales
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of pay. The principle of equal pay for equal work would
be an abstract doctrine not attracting Art. 14 if
sought to be applied to them."
With respect we agree with the conclusion arrived at in
the above Judgment, that where all relevant considerations
are the same, persons holding identical posts and
discharging similar duties should not be treated
differently.
The case on hand is much stronger than the facts of the
Randhir Singh’s case. In that case, the drivers belonged to
two different departments. In this case, the Senior
Draughtsmen, divided into two groups are in the same
department doing identical and same work. It is not a case
of different grades created on the ground of higher
qualification either academic or otherwise or an entitlement
by any other criteria laid down. The justification for this
classification is by the mere accident of an earlier entry
into service. This cannot be justified.
The above decision of this Court has enlarged the
doctrine of equal pay for equal work, envisaged in Article
39(d) of the Constitution of India and has exalted it to the
position of a fundamental right by reading it alongwith
Article 14. This exposition of law had given rise to some
whispering dissent in that the doctrine had been extended
beyond permissible limits. The observations that the
abstract doctrine of equal pay for equal work has nothing to
do with Art. 14, in the Judgment in Kishori Mohanlal Bakshi
v. Union of India (supra), rendered by a Constitution Bench
of this Court it is contended, may perhaps run counter to
the observations in the decision referred above. We do not
think it necessary on the facts of this case to dwelve at
length upon the effect of this observation on a wider campus
of service jurisprudence in the context of equal pay for
equal work which will have to be attempted in an appropriate
case.
For the purposes of the case on hand, it is sufficient
to note that the classification between two groups of Senior
Draughtsmen is
110
without any basis. They do the same work, they perform the
same duties, and as such the ratio of the decision in
Randhir Singh’s case applies to this case with greater
force. The Order passed by the Government of India on 27th
January, 1978, implementing this classification violates
Art. 14 of the Constitution and has to be struck down and we
do so. In our opinion, it would be a great injustice to
continue the appellants on the scales of pay of Draughtsmen
even after promotion as Senior Draughtsmen, which is
destructive of all incentive and initiative in the service.
In our Judgment, the High Court was in error in declining
relief to the appellants. We accordingly, set aside the
Judgment of the High Court and allow this appeal and direct
the Union of India to fix the scale of pay of appellants at
Rs. 425-15-50-EB-15-560-20-640-EB-20-700. The appellants
will be entitled to costs from the respondent No. 1.
M.L.A. Appeal allowed.
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