Full Judgment Text
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PETITIONER:
INDER SINGH & ORS.
Vs.
RESPONDENT:
VYAS MUNI MISHRA & ORS.
DATE OF JUDGMENT14/08/1987
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
MISRA RANGNATH
CITATION:
1987 SCR (3) 972 1987 SCC Supl. 257
JT 1987 (3) 384 1987 SCALE (2)306
ACT:
U.P. Cane Development (Fourth Class) Service Rules,
1972/U. P. Ganna Paryavekshak (111) Service Rules, 1972:
Ganna Gram Sewaks/ Cane Supervisors--Posts carrying differ-
ent duties, basic educational’ qualifications--Merger
of--Whether permissible and legal.
Constitution of India, Arts. 226, 136, 39(d): Principle
of equal pay for equal work--Applicability of--Two different
groups of persons performing different duties--Promotional
post having higher qualifications than the feeder
post--Jurisdiction of the court to order merger-Whetherprop-
er.
Service Law: Merger of two cadres into one or bifurca-
tion of a cadre--Within jurisdiction and authority of execu-
tive government-Not of the court.
HEADNOTE:
The U.P. Cane Development (Fourth Class) Service Rules,
1972 prescribe minimum qualification of High School Examina-
tion for the post of Ganna Gram Sewak. The U.P. Ganna Parya-
vekshak (III) Services Rules, 1972 lay down the basic quali-
fication of Intermediate (Agriculture) or equivalent or High
School with two years’ Diploma in Agriculture for the post
of Cane Supervisor, and provide for filling 50 per cent of
these posts by promotion from amongst permanent Ganna Gram
Sewaks. The Cane Commissioner by his letter dated March 10,
1975 recommended to the State Government that the minimum
educational qualification for Ganna Gram Sewaks should be
Intermediate. No amendment, however, has been made to the
said Rules.
The duties that are to be performed by the Ganna Gram
Sewaks are preparation of progress report, survey of cane
areas, and development programme. The Cane Supervisors are
responsible for plant protection, inputs godown and nurser-
ies in the areas of Ganna Gram Sewaks.
The respondent No. 1 flied a writ petition under Art. 226 of
the
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Constitution praying for a writ of mandamus directing the
State Government to merge the post of Ganna Gram Sewaks and
the Cane Supervisors into one cadre.
The High Court took the view that although the minimum
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educational qualifications required were High School for
Ganna Gram Sewaks and Intermediate in Agriculture for Cane
Supervisors, since 1975 the minimum qualification became
Intermediate in Agriculture for both Ganna Gram Sewaks and
Cane Supervisors, that the nature of duties performed by the
members of these two categories of posts was the same, and
relying upon the principle of equal pay for equal work, as
contained in Art. 39(d) of the Constitution, allowed the
writ petition and directed the State Government to merge the
said posts into one cadre of Ganna Sahayak.
The State, and the Cane Supervisors preferred appeals to
this Court.
Allowing the appeals,
HELD: 1.1 The High Court exceeded its jurisdiction in
directing the merger of the posts of Ganna Gram Sewaks and
Cane Supervisors. [977E]
1.2 The merger or bifurcation of a cadre is an executive
act. It is for the State to consider whether two groups of
persons working under two distinct posts perform the same
kind of duties or not, and whether in implementing the
directive principle, as contained in Art. 39(d) of the
Constitution, it is necessary to merge the two posts into
one cadre or post. [980AB]
1.3 The principle of equal pay for equal work requires
on the face of it that the work to be performed by two
groups of persons must be equal. The Court may in such cases
direct equal pay by way of removing unreasonable discrimina-
tion and treating the two groups, similarly situated, equal-
ly. [977H; 980CD]
In the instant case, the nature of the duties that are
performed by the members of the two categories of posts are
different. The Ganna Gram Sewaks are responsible for prepa-
ration of progress report, survey of. the cane areas and
development programme. On the other hand Cane Supervisors
are responsible for plant protection, inputs godown and
nurseries in the areas of Ganna Gram Sewaks. The
974
minimum qualification required for each post is also differ-
ent. Both of them function more or less independently.
Furthermore, the post of Cane Supervisor is a promotional
post vis-a-vis the post of Ganna Gram Sewak. It will, there-
fore, be beyond the jurisdiction of the court to implement
the principle of equal pay for equal work inasmuch as such
implementation will practically result in the amalgamation
of the two posts. [978A, 979EF, 978B, 979G]
2. Under the Rules the minimum qualification required
for the Ganna Gram Sewaks is High School or equivalent. So
long as the Rules are amended and the minimum qualification
is not enhanced to Intermediate in Agriculture, the Cane
Development Department of the State cannot prescribe or
insist on a minimum qualification of Intermediate in Agri-
culture. The High Court, therefore, was not justified in
relying upon the letter of the Cane Commissioner dated March
10, 1975 in preference to the Rules framed’ under Article
309 of the Constitution for taking the view that the minimum
qualification for that post has been Intermediate in Agri-
culture since 1975. [879CE, 978H]
3. Article 39(d) of the Constitution lays down the
directive principle of equal pay for equal work for both men
and women. The directive principles contained in Part-IV of
the Constitution are not enforceable in any court of law. It
is a constitutional goal that has to be achieved at the
instance of the State. [979H-980A]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4115 and
4116 of 1985.
From the Judgment and Order dated 12.4.1985 of the
Allahabad High Court in Civil Misc. Writ Petn. No. 3441 of
1984.
J.P. Goyal, Rajesh for the Appellants in C.A. No. 41 15 of
1985.
Anil Dev Singh, Mrs. S. Dikshit and Sudhir Kulshreshta
for the Appellants in C.A. No. 4116 of 1985.
R. Ramachandran for the Respondents.
The Judgment of the Court was delivered by
DUTT, J.These two appeals by special leave, one pre-
ferred by the State of U.P. and the other by the Cane Super-
visors of the Cane Development Department, U.P., are direct-
ed against the judgment of
975
the Allahabad High Court directing the State Government to
merge the posts of Ganna Gram Sewaks and Ganna Supervisors
into the cadre of Ganna Sahayak in the pay scale of Rs.400-
615 with effect from 1-7-1979.
In the hierarchy of field officers in the Cane Develop-
ment Department, U.P., the post of Ganna Gram Sewak is at
the bottom. The next higher post is the post of Cane Super-
visor. Under the Cane Development (Fourth Class) Service
Rules, 1972 framed under Article 309 of the Constitution of
India, the posts of Ganna Gram Sewaks are filled by direct
recruitment and the minimum qualification prescribed there-
for by Rule 9(3) of the said Rules is that a candidate for
recruitment in the post of Ganna Gram Sewak must have passed
the High School Examination from the Board of High Schools
and Intermediate Education, U.P. or an equivalent examina-
tion and he must know Hindi in Devnagri script. Under the
Uttar Pradesh Ganna Paryavekshak (III) Service Rules, 1978,
also framed under Article 309 of the Constitution of India,
50 per cent of the posts of Cane Supervisors are to be
filled by direct recruitment and the remaining 50 per cent
by promotion on the basis of seniority from amongst perma-
nent Ganna Gram Sewaks of the concerned region. The basic
qualification for the post of Cane Supervisor is Intermedi-
ate (Agriculture) or equivalent or High School with two
years Diploma in Agriculture. The duties that are to be
performed by the Ganna Gram Sewaks are preparation of
progress report, survey of the cane areas and development
programmes. The Cane Supervisors are responsible for plant
protection, inputs godown and nurseries in the areas of
Ganna Gram Sewaks.
The State of U.P. appointed a Second Pay Commission in
the year 1979. The Ganna Gram Sewaks submitted a representa-
tion to the Commission demanding that since their qualifica-
tions were similar to those of Cane Supervisors and they
performed the same kind of duties, they should get the same
pay scale as that of the Cane Supervisors. It appears that
on the suggestion of the Pay Commission, the State Govern-
ment appointed a Task Force Committee. The Task Force Com-
mittee in its report recommended the merger of the posts of
Ganna Gram Sewaks and Cane Supervisors into one group to be
designated as Ganna Sahayaks and allotted an equal field of
operation. It was observed that the merger being effected
would satisfy the demand of the Ganna Gram Sewaks for the
equalisation of their pay scale with that of the Cane Super-
visors. The said recommendation was made by the Task Force
Committee on the ground that there was no special difference
between these two categories of posts in regard to
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the duties performed by the members of each category. The
Second Pay Commission, however, did not accept the recommen-
dation made by the Task Force Committee for the merger of
these two categories of posts .into one category, namely,
Ganna Sahayak. After taking into consideration the minimum
academic qualification and the nature of duties for each
category, the Second Pay Commission, inter alia, recommended
the revision of the pay scales as follows:-
CANE DEVELOPMENT DEPARTMENT
S. No. Name of Post Pay Scale
Existing Proposed
46. Cane Supervisor/ 230-385 400-615
Seed Asstt. Ordinary Ordinary
Grade Grade
250-425 510-675
(Selection After
Grade) After 10 years
of service
Selection Grade
( 15% Selection
Grade on the
post of
Supervisor)
47. Ganna Gram Sewak 185-265 325-495
Ordinary Ordinary
Grade Grade
200-320 400-540
Selection After 15 years
Grade of service
Selection Grade
on 15% posts.
The recommendation of the Second Pay Commission was
considered by the Review Committee and, thereafter, by the
Cabinet Sub-Committee. There is a dispute between the par-
ties as to whether the Cabinet Sub-Committee had accepted
the recommendation made by the Task Force Committee. Be that
as it may, the State Govern-
977
ment accepted the recommendations of the Second Pay Commis-
sion only with a slight modification that instead of a pay
scale of Rs.325-495 for Ganna Gram Sewaks, it would be
Rs.330-495.
One of the Ganna Gram Sewaks, Shri Vyas Muni Mishra, the
respondent No. 1, filed a writ petition before the Allahabad
High Court praying for a writ of mandamus directing the
State Government to merge the posts of Ganna Gram Sewaks and
Cane Supervisors into one cadre of ’Ganna Sahayak’. The High
Court took the view that although the minimum educational
qualifications required were High School for Ganna Gram
Sewaks and Intermediate in Agriculture for Cane Supervisors,
since 1975 the minimum qualification for both Ganna Gram
Sewaks and Cane Supervisors became Intermediate in Agricul-
ture. Further, the High Court was of the view that the
nature of duties performed by the members of these two
categories of posts was the same. Accordingly, relying upon
the principle of equal pay for equal work, as contained in
Article 39(d) of the Constitution, the High Court allowed
the writ petition and directed the State Government to merge
the posts of Ganna Gram Sewak and that of Cane Supervisor
into one post as Ganna Sahayak in the pay scale of Rs.400-
615 with effect from July 1, 1979. The State of U.P. and the
Cane Supervisors being aggrieved by the judgment of the High
Court have preferred the above appeals.
At the outset it may be said that the High Court exceed-
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ed its jurisdiction in directing the merger of the two
posts. It may be that the Task Force Committee and the
Review Committee had recommended for the merger, but it was
for the State Government to consider whether such merger
should be made or not. The State Government after considera-
tion of the relevant reports and recommendations accepted
the recommendation of the Second Pay Commission only with
regard to the revision of the pay scale of the Ganna Gram
Sewaks with the slight modification by an increase of Rs. 5
at the initial stage of the recommended pay scale. The
question whether two posts should be merged into one or not
is absolutely within the jurisdiction and authority of the
Executive Government. However much the High Court was influ-
enced by the principle of equal pay for equal work for both
men and women as contained in Article 39(d) of the Constitu-
tion, the High Court was not justified in exceeding its
jurisdiction for giving effect to the said doctrine.
The principle of equal pay for equal work requires on
the face of it that the work to be performed by two groups
of persons must be
978
equal. It has been already noticed that the duties that had
to be performed by the Ganna Gram Sewaks are preparation of
progress report, survey of the cane areas and development
programmes. On the other hand, the Cane Supervisors are
responsible for plant protection, inputs godown and nurser-
ies in the areas of Ganna Gram Sewaks. Thus the nature of
duties that are performed by the members of these two cate-
gories of posts is different. It has been observed by the
Second Pay Commission that the Department has so fixed the
duties of the two functionaries that both of them now func-
tion more or less independently. The High Court did not
discuss in detail as to whether the Ganna Gram Sewaks and
the Cane Supervisors perform the same duties. The High Court
has only referred to an observation in the report of the
Task Force Committee that there were not much differences in
the duties performed by these two categories of officers. As
has been stated already, the Second Pay Commission did not
accept the recommendation of the Task Force Committee for
the merger of the two posts into one. It is true that the
Cane Supervisors are not doing any supervision of the work
of the Ganna Gram Sewaks, but in view of the nature of
duties performed by both, as mentioned above, it is diffi-
cult to hold that both perform the same kind of duties. We
have also looked into the reports of the Task Force Commit-
tee and the Review Committee. In our opinion, these two
Committees have not properly dealt with the nature of duties
performed by the Ganna Gram Sewaks and Cane Supervisors,
although both these Committees have recommended the merger
of the two posts. As soon as, therefore, it is held that the
two groups of persons do not perform the same kind of du-
ties, the question of equal pay for equal work does not
arise.
In directing merger of the two posts, the High Court has
greatly relied upon the fact that although the minimum
educational qualification for Ganna Gram Sewaks was High
School, since 1975 the minimum educational qualification for
the Ganna Gram Sewaks has been Intermediate in Agriculture.
In other words, according to the High Court the minimum
educational qualification required for both these posts is
Intermediate in Agriculture. We have already referred to the
Rules framed under Article 309 of the Constitution under
which the minimum qualification for the posts of Ganna Gram
Sewaks has been prescribed as High School or equivalent
examination and for the Cane Supervisors as Intermediate
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(Agriculture) or equivalent or High School with two years’
Diploma in Agriculture. The minimum qualifications, as
prescribed, have not yet been changed by the amendment of
the said Rules. In entertaining the view that the minimum
qualification for the Ganna Gram Sewaks has been since 1975
Intermediate in
979
Agriculture, the High Court has placed reliance upon a
letter dated March 10, 1975 addressed by the Cane Commis-
sioner, U.P,, to the Deputy Secretary, Cane Development
Department, Government of U.P. In that letter, it was recom-
mended that the minimum educational qualification for the
Ganna Gram Sewaks should be Intermediate in accordance with
the proposal of the Ganna Gram Sewaks’ Union, U.P. It was,
accordingly, requested by the Cane Commissioner in the said
letter that the Government might consider the minimum quali-
fication as recommended. It is the case of the State of U.P.
that the said letter was issued-in connection with 600 new
posts of Ganna Gram Sewaks to be created under non-statutory
bodies, namely, Sakkar Nidhi and Ganna Board. It is contend-
ed that these 600 posts have nothing to do with the posts of
Ganna Gram Sewaks under the Cane Development Department of
the State of U.P. In our opinion, the High Court should not
have placed any reliance upon any such recommendation made
by the Cane Commissioner, when, under the Rules framed under
Article 309 of the Constitution, the minimum qualification
required for the Ganna Gram Sewaks is High School or equiva-
lent. So long as the Rules are amended and the minimum
qualification is not enhanced to Intermediate in Agricul-
ture, the Cane Development Department of the Government
cannot prescribe or insist on a minimum qualification of
Intermediate in Agriculture. The Second Pay Commission could
not also equate the posts of Ganna Gram Sewaks with that of
Cane Supervisors on the ground that the minimum qualifica-
tion for the two posts are different. The High Court was,
therefore. not justified in relying upon the said letter of
the Cane Commissioner in preference to the Rules framed
under Article 309 of the Constitution. In our view, there-
fore, not only the nature of duties attached to each post is
different, but also the minimum qualification required for
each post is also different.
As stated earlier, the posts of Ganna Gram Sewaks are
filled by direct recruitment. So far as .the posts of Cane
Supervisors are concerned, 50 per cent of the same are
filled by promotion from the posts of Ganna Gram Sewaks and
the remaining 50 per cent are filled by direct recruitment.
Thus, the post of Cane Supervisor is a promotional post
vis-a-vis the post of Ganna Gram Sewak. In our view where,
as in the instant case, of the two posts, one being the
promotional post and the other being the feeder post, it
will be beyond the jurisdiction of the Court to implement
the principle of equal pay for equal work inasmuch as such
implementation will practically result in the amalgmation of
the two posts leading to great administrative difficulties.
Article 39(d) of the Constitution lays down the Directive
Principle of
980
equal pay for equal work for both men and women. The direc-
tive principles contained in Part-IV of the Constitution are
not enforceable in any court of law. It is a constitutional
goal that has to be achieved at the instance of the State.
Merger or bifurcation of a cadre is an executive act and
normally the Court does not deal with it. It is for the
State to consider whether two groups of persons working
under two distinct posts perform the same kind of duties or
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not and whether in implementing the directive principle, as
contained in Article 39(d) of the Constitution, it is neces-
sary to merge these two posts into one cadre or post. If the
State Government is of the view that it is necessary that
there should be a merger of the two posts into one post, the
State Government has to take steps in that regard by framing
proper rules with regard to seniority, promotions, etc. But,
when two groups of persons are in the same or similar posts
performing same kind of work, either in the same or in the
different Government departments, the Court may in suitable
cases direct equal pay by way of removing unreasonable
discrimination and treating the two groups, similarly situ-
ated, equally. In the facts and circumstances of the instant
case, we are of the view that the High Court was not justi-
fied in directing a merger of the two posts, namely, the
posts of Ganna Gram Sewaks and Cane Supervisors.
For the reasons aforesaid, the impugned judgment of the
High Court is set aside and the writ petition is dismissed.
Both these appeals are allowed. There is, however, no order
as to costs.
This judgment, however, will not prevent the State of
U.P. from considering the merger of these two posts and the
consequent equalisation of pay.
P.S.S, Appeals
allowed.
981