Full Judgment Text
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CASE NO.:
Appeal (civil) 3134 of 1999
PETITIONER:
M.P. Rural Agriculture Extension Officers Association
RESPONDENT:
State of M.P. and Anr.
DATE OF JUDGMENT: 05/04/2004
BENCH:
CJI, S.B. Sinha & S.H. Kapadia.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Applicability of doctrine of ’equal pay for equal work’
is involved in this appeal which arises out of a judgment
and order dated 13.4.1998 passed by the High Court of Madhya
Pradesh at Jabalpur in Writ Petition No.1550 of 1998.
BACKGROUND FACTS:
The appellant herein is an Association of Rural
Agriculture Extension Officers (hereinafter referred to as
’the Extension Officers’). They were originally appointed
as Village Level Workers. They are matriculates. The
services of the Village Level Workers were transferred to
the agriculture department of the State. It framed rules in
the year 1972. On or about 9.4.1981, the designation of the
Village Level Workers was changed to the Rural Agriculture
Extension Officer by the State Government. The State of
Madhya Pradesh in exercise of the power conferred upon it
under the Proviso appended to Article 309 of the
Constitution of India made rules known as ’Madhya Pradesh
Revision of Pay Rules, 1983’. Rule 3 of the said Rules
reads as under :
"3. Revised Scale of Pay.- The revised
scale of pay applicable to any post
carrying existing scale shown in columns
2 and 3 of Annexures I and II
respectively shall be the corresponding
pay-scale shown in column 4 thereof
respect of that post."
By reason of the provisions of the said Rules, two
different scales of pay were prescribed, namely, Rs.575-
880/- for non-graduates (Dying scale) and Rs.635-950/- for
fresh recruitment and for existing B.Sc./B.Sc. Agriculture.
By reason of an executive instruction dated 2/5.3.1984, the
decision of the State Government was communicated to the
Director, Agriculture, the relevant portion whereof is to
the following effect:
"Essential educational qualification
for the post of Rural Agricultural
Extension Officer being graduation (for
all departments) be fixed and all the
graduates so employed be paid by the
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pay-scale of Rs.635-950/-. All those
graduate employees who were working to
the posts in all departments prior to
1.4.81 should be paid given a salary at
the rate of Rs.635-950/-.
2. *
3. *
This sanction endorsement vide
notification No.5/385/84/Dept.1/Four
dated 3.3.84 had been endorsed in the
records of the Accountant General’s
Office."
Yet again by an amendment to the rule by a notification
dated 5.9.1984 in sub-clause (2) in Part B of the said Rules
the words "for new recruitments and for the qualification
B.Sc./B.Sc. (Agri.) pass" were replaced by the words "for
new recruitments and for graduates holding the degree".
The appellant herein filed a writ petition before the High
Court of Madhya Pradesh at Jabalpur praying, inter alia, for
the following reliefs :
"b) That the pay scale of Rural
Agriculture Extension Officers be given
in accordance with the ratio given in
AIR 1984 Supreme Court 1221 and it
should be enhanced with the cadres
stated in the above paras by giving them
maximum pay scale, as has been given to
any one of those cadres."
On constitution of the Madhya Pradesh State
Administrative Tribunal in the year 1988, however, the said
writ petition was transferred thereto. The Tribunal gave
several opportunities to the respondents herein to file a
return but despite its failure to do so and despite holding
that a clear case of hostile discrimination has been made
out in view of the decision of this Court in Union of India
and Another vs. P.V. Hariharan and Another [(1997) 3 SCC
568] = [JT 1997 SC 569] held that the grievances of the
applicant regarding pay scale had to be dealt with by the
Pay Commission. A writ petition filed thereagainst before
the Division Bench of the Madhya Pradesh High Court by the
appellant was also dismissed in view of the judgment of this
Court in Hariharan (supra) observing :
"...Moreso, there can always be a
classification on the basis of
graduation and non-graduation in the pay
scale. Thus, we are satisfied that
there is no ground to interfere with the
order. Hence, this petition is
dismissed."
SUBMISSIONS :
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Dr. Rajeev Dhavan, learned Senior Counsel appearing on
behalf of the appellant, would submit that the Tribunal as
also the High Court went wrong in passing the impugned
judgments and orders insofar as they failed to take into
consideration that as by reason of the impugned rule no new
post or cadre was created, sanction of different pay scale
to the employees belonging to the same cadre was
impermissible. The purported classification between the two
sets of employees whose posts are interchangeable and who
are carrying out the same work and have undergone the same
training could not have been placed in two different classes
only on the basis of educational qualification, the learned
Counsel submitted. Dr. Dhavan would contend that as despite
having been given several opportunities, the respondents
herein failed to file return, they must be deemed to have
admitted the contentions raised by the appellant herein
before the Tribunal as correct and, thus, the Tribunal
misdirected itself in refusing to grant any relief to the
appellant despite arriving at a finding that the State has
committed a hostile discrimination against the appellant.
Educational qualification, Dr. Dhavan would urge, can be a
valid criteria only where new cadre is created and where no
minimum qualification was fixed at the time of initial
appointment, but in a situation where the employees
irrespective of their qualification had been performing the
same functions in the same grade, the doctrine of equal pay
for equal work would be applicable.
Drawing our attention to the report of the Pay Revision
Commissions made on or about 13.10.1982 as also in the year
1999, the learned counsel would submit that the State should
have accepted the recommendations contained therein for
grant of scale of pay to all Extension Officers irrespective
of their educational qualification. The learned counsel in
support of his aforementioned contention has placed strong
reliance on State of Mysore vs. B. Basavalingappa [(1986)
Supp. SCC 661], State of Madhya Pradesh and Another vs.
Pramod Bhartiya and Others [(1993) 1 SCC 539] and Shyam Babu
Verma and Others vs. Union of India and Others [(1994) 2 SCC
521].
The learned counsel would contend that the doctrine of
classification should not be stretched too far and the same
cannot be a basis for justifying an arbitrary action on the
part of the State. In support of the said contention,
reliance has been placed on Col. A.S. Iyer and Other vs. V.
Balasubramanyam and Others [(1980) 1 SCC 634].
Ms. Geetanjali Mohar, learned counsel appearing on
behalf of the State of Chhattisgarh, on the other hand,
would urge that the possession of a higher educational
qualification has all along been held by this Court to be a
valid classification for the purpose of fixing the scale of
pay. Although the concerned employees had been performing
similar duties and functions, the same would not mean, it
was urged, that the employees cannot be granted different
scale of pay on the basis of their educational
qualification. Article 14 of the Constitution of India. Ms.
Mohan would argue, will have application only when a
discrimination is made between the persons who are
absolutely similarly situated and not otherwise. Strong
reliance in this behalf has been placed on The State of
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Mysore and Another vs. P. Narasinga Rao [AIR 1968 SC 349] =
[1968 (1) SCR 467], Mewa Ram Kanojia vs. All India Institute
of Medical Sciences and Others [(1989) 2 SCC 235], V.
Markendeya and Others vs. State of Andhra Pradesh and Others
[(1989) 3 SCC 191] and a recent decision of this Court in
Government of West Bengal vs. Tarun K. Roy and Others [JT
2003 (9) SC 130].
ANALYSIS:
Applicability of doctrine of equal pay for equal work
on the touchstone of Article 39(d) read with Article 14 of
the Constitution of India will have to be considered for the
purpose of the present case on the premise that save and
except disparity in educational qualification, the nature
of work performed by Extension Officers is identical and
they had undergone a similar training. It is trite that the
Pay Commission on or about 13.10.1982 and in the year 1999
desired and recommended that the same scale of pay be given
to the Extension Officers irrespective of their educational
qualification, but it is not in dispute that the
recommendations of the Pay Commission were not accepted by
the State. The relevant portion of the recommendations of
the Pay Commission and the Order of the State Government
thereupon respectively are as under :
"
Sl.
No.
Report of
Pay
Commission
Chapter/Para
Recommendations of Pay
Commission
Order of the State
Government
5.
Twelve 17
& 18
(One) The present pay
scale of Gram Sewak
Rs.169-300 the said
pay scale was
recommended to be
revised at S. No. five
and this suggestion
was proposed that all
the Gram Sewak who
passed the 6th
months training course
should be upgraded to
pay scale of Rs.195-
330 as being revised
grade.
According to the
amendment in the
recruitment rules
of this department
the minimum
qualification
being graduation
with Science or
Agriculture and in
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future the Gram
Sewak be placed on
pay scale Rs.635-
950. This pay
scale will be
given to Gram
Sewaks who were
only Agriculture
graduate or
Science graduate
but other gram
sewaks will be
given the revised
pay scale Rs.
575-880 as
accepted pay
scale.
"
We have noticed hereinbefore that the State issued an
executive instruction directing that not only the fresh
recruits shall be entitled to the pay scale of Rs.635-950/-,
but also the graduate officers working even prior to
1.4.1981 would be eligible therefor. We have furthermore
noticed that by reason of an amendment in the rules made in
terms of notification dated 5.9.1984, the employees holding
a degree as also the new recruits were to be placed in the
said scale of pay.
ISSUE :
The primal question which arises for consideration is
whether the aforementioned order of the State Government is
discriminatory in nature.
FINDINGS :
The Pay Commissions are constituted for evaluating the
duties and functions of the employees and the nature thereof
vis-‘-vis the educational qualifications required therefor.
Although the Pay Commission is considered to be an expert
body, the State in its wisdom and in furtherance of a valid
policy decision may or may not accept its recommendations.
The State in exercise of its jurisdiction conferred upon it
by the proviso appended to Article 309 of the Constitution
of India can unilaterally make or amend the conditions of
service of its employees by framing appropriate rules. The
State in terms of the said provision is also entitled to
give a retrospective effect thereto. A policy decision had
been adopted by the State that the post of Extension
Officers shall be filled up only by graduates. Such a
policy decision ex facie cannot be termed to be arbitrary or
irrational attracting the wrath of Article 14 of the
Constitution of India. A dying scale was provided by the
State for the non-graduates. Fresh recruitments were to be
made only from amongst the persons who held the requisite
educational qualification. With a view to avoid any
discrimination between the new recruits and the serving
employees who possessed the same qualification, the State
cannot be said to have acted illegally in granting a higher
scale of pay also for the existing degree holders.
Article 14, it is trite, does not forbid a reasonable
classification.
Article 14 forbids class legislation but permits
reasonable classification subject to the conditions that it
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is based on an intelligible differentia and that the
differentia must have a rational relation to the object
sought to be achieved. [See Saurabh Chaudri and Ors. Vs.
Union of India and Ors. [2003 (9) SCALE 272]
Constitutional interpretation is a difficult task.
Its concept varies from statute to statute, fact to fact,
situation to situation and subject matter to subject matter.
A classification based on educational qualification has been
applied by a Constitution Bench of this Court as far back as
in 1968 in P. Narasinga Rao (supra), wherein it was
observed:
"It is well settled that though Article
14 forbids class legislation, it does
not forbid reasonable classification for
the purpose of legislation. When any
impugned rule or statutory provision is
assailed on the ground that it
contravenes Article 14, its validity can
be sustained if two tests are satisfied.
The first test is that the
classification on which it is founded
must be based on an intelligible
differentia which distinguishes persons
or things grouped together from others
left out of the group, and the second
test is that the differentia in question
must have a reasonable relation to the
object sought to be achieved by the rule
or statutory provision in question. In
other words, there must be some rational
nexus between the basis of
classification and the object intended
to be achieved by the statute or the
rule. As we have already stated.
Articles 14 and 16 form part of the same
constitutional code of guarantees and
supplement each other. In other words,
Art. 16 is only an instance of the
application of the general rule of
equality laid down in Art. 14 and it
should be construed as such. Hence there
is no denial of equality of opportunity
unless the person who complains of
discrimination is equally situated with
the person or persons who are alleged to
have been favoured. Article 16 (1) does
not bar a reasonable classification of
employees or reasonable tests for their
selection."
The said dicta was applied by this Court in Mewa Ram
Kanojia (supra), stating :
"5. While considering the question of
application of principle of ’Equal pay
for equal work’ it has to be borne in
mind that it is open to the State to
classify employees on the basis of
qualifications, duties and
responsibilities of the posts concerned.
If the classification has reasonable
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nexus with the objective sought to be
achieved, efficiency in the
administration, the State would be
justified in prescribing different pay
scale but if the classification does not
stand the test of reasonable nexus and
the classification is founded on unreal,
and unreasonable basis it would be
violative of Articles 14 and 16 of the
Constitution. Equality must be among the
equals. Unequal cannot claim equality."
The principle was reiterated in V. Markendeya (supra),
observing :
"13. In view of the above discussion we
are of the opinion that 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
qualification, they would be entitled to
equal pay. If the State denies them
equality in pay, its action would be
violative of Articles 14 and 16 of the
Constitution, and the court will strike
down the discrimination and grant relief
to the aggrieved employees. But before
such relief is granted the court must
consider and analyse the rationale
behind the State action in prescribing
two different scale of pay. If on an
analysis of the relevant rules, orders,
nature of duties, functions, measure of
responsibility, and educational
qualifications required for the relevant
posts, the court finds that the
classification made by the State in
giving different treatment to the two
classes of employees is 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 is
applicable among equals, it cannot be
applied to unequals. Relief to an
aggrieved person seeking to enforce the
principles of equal pay for equal work
can be granted only after it is
demonstrated before the court that
invidious discrimination is practised by
the State in prescribing two different
scales for the two classes of employees
without there being any reasonable
classification for the same. If the
aggrieved employees fail to demonstrate
discrimination, the principle of equal
pay for equal work cannot be enforced by
court in abstract. The question what
scale should be provided to a particular
class of service must be left to the
executive and only when discrimination
is practised amongst the equals, the
court should intervene to undo the
wrong, and to ensure equality among the
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similarly placed employees. The court
however cannot prescribe equal scales of
pay for different class of employees."
A Bench of three Judges in which two of us were parties
reiterated the same principle in Tarun K. Roy and Ors.
(supra).
The aforementioned decisions are authorities for the
proposition that despite the fact that the employees have
been performing similar duties and functions and their posts
are interchangeable, a valid classification can be made on
the basis of their educational qualification. The
observation of Krishna Iyer, J. in V. Balasubramanyam
(supra) although is interesting but it appears that the fact
of the matter involved therein did not warrant application
of the said principle.
The view of Subba Rao, J. in Lachhman Dass vs. State of
Punjab and Others [AIR 1963 SC 222] was a minority view.
Venkatarama Aiyar, J. therein speaking for the majority
held :
"...The law is now well settled that
while Art. 14 prohibits discriminatory
legislation directed against one
individual or class of individuals, it
does not forbid reasonable
classification, and that for this
purpose even one person or group of
persons can be a class. Professor
Willis says in his Constitutional Law
p.580 "a law applying to one person or
one class of persons is constitutional
if there is sufficient basis or reason
for it". This statement of the law was
approved by this Court in Chiranjit Lal
Chowdhury vs. Union of India, 1950 SCR
869 : (AIR 1951 SC 41). There the
question was whether a law providing for
the management and control by the
Government, of a named company, the
Sholapur Spinning & Weaving Company Ltd.
was bad as offending Art. 14. It was
held that even a single Company might,
having regard to its features, be a
category in itself and that unless it
was shown that there were other
Companies similarly circumstanced, the
legislation must be presumed to be
constitutional and the attack under Art.
14 must fail. In Ram Krishna Dalmia v.
S.R. Tendolkar, 1959 SCR 279 at p. 297 :
(AIR 1958 SC 538 at p. 547) this Court
again examined in great detail the scope
of Art. 14, and in enunciating the
principles applicable in deciding
whether a law is in contravention of
that Article observed :
"that a law may be constitutional
even though it relates to a single
individual if on account of some special
circumstances pr reasons applicable to
him and not applicable to others that
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single individual may be treated as a
class by himself."
Furthermore, as noticed hereinbefore, a valid
classification based on educational qualification for the
purpose of grant of pay has been upheld by the Constitution
Bench of this Court in P. Narasinga Rao (supra).
In B. Basavalingappa (supra), a two-Judge Bench of this
Court did not notice the earlier binding precedents of this
Court. In fact one of them, K.N. Singh, J., as the learned
Chief Justice then was, was a party to the subsequent
decision in Mewa Ram Kanojia (supra). In that case no
material was brought on records on the basis of which it
could be contended that there was any substantial difference
at that time between the two classifications although they
were described differently. It was in that situation
observed :
"...It was argued that a diploma is a
higher qualification than a certificate.
But neither there is any curriculum on
record nor any other material to draw
that inference. On the contrary this
circumstance that at the time when
respondent was recruited a diploma
holder or a certificate holder both were
entitled to be recruited as an
Instructor on the same pay scale
indicates that in those days the two
were considered to be alike."
In Pramod Bhartiya (supra), Jeevan Reddy, J.
categorically held that burden to prove that a
discrimination has been committed is upon the petitioners.
In that case petitioners failed to discharge their burden.
Yet again in Shyam Babu Verma (supra), N.P. Singh, J.
speaking for a three-Judge Bench observed :
"...The nature of work may be more or
less the same but scale of pay may vary
based on academic qualification or
experience which justifies
classification. The principle of ’equal
pay for equal work’ should not be
applied in a mechanical or casual
manner. Classification made by a body
of experts after full study and analysis
of the work should not be disturbed
except for strong reasons which indicate
the classification made to be
unreasonable. Inequality of the men in
different groups excludes applicability
of the principle of ’equal pay for equal
work’ to them..."
True it may be that when recommendations are made by a
Pay Commission, evaluation of job must be held to have been
made but the same by itself may not be a ground to enforce
the recommendations by issuing a writ of or in the nature of
mandamus although the State did not accept the same in toto
and made rules to the contrary by evolving a policy decision
which cannot be said to arbitrary or discriminatory.
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For the reasons aforementioned, we are of the opinion
that no case has been made for our interference with the
impugned judgment. The appeal is dismissed accordingly. No
costs.