Full Judgment Text
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 146869 OF 2019
[Arising out of SLP (C) Nos. 2989029891of 2017]
Bihar State Beverages Corporation Ltd. & Ors. .. Appellants
Versus
Naresh Kumar Mishra & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the Division Bench of the
High Court of Judicature at Patna dated 19.7.2017 in Letters
Patent Appeal No. 162 of 2016 in CWJC No. 9760 of 2012 and in
Letters patent Appeal No. 568 of 2016 in CWJC No. 3224 of
Signature Not Verified
2012, by which the Division Bench has allowed the said Letters
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2019.02.05
17:42:07 IST
Reason:
Patent Appeals and has set aside the order passed by the learned
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Single Judge passed in CWJC No. 9760 of 2012 and CWJC No.
3224 of 2012 dismissing the said writ petitions and,
consequently, allowing the petitions by holding that the
respective original Writ Petitioners – Respondents herein, the
employees of the Appellant – Bihar State Beverages Corporation
Limited (hereinafter referred to as the “Corporation”) are entitled
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to the 6 Pay Revision, the Appellant Corporation has preferred
the present Appeals.
3. That all the original Writ Petitioners are working with the
Appellant Corporation on different posts since 2006. That the
Appellant Corporation came into existence in view of the decision
of the State Government in the year 2006 when it was
incorporated as a Government Company in terms of Section 617
of the Companies Act with its main objective being to improve the
excise revenue of the Government of Bihar. It appears that a
decision was taken not to make any appointment in the
Corporation by direct recruitment, but to bring the employees by
way of contract/deputation from amongst the employees of the
other Board and Corporation and also from retired employees of
the Board and/or Corporation of the State or the Central
Government. Therefore, as such, there is not a single employee
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working with the Corporation appointed by the Corporation by
way of direct recruit. The Appellant Corporation issued an
Advertisement on 18.8.2006 for making appointment by way of
contract/deputation of the employees of other Board and
Corporation and also from the retired employees of the Board
and/or Corporation of the State or Central Government. Such
appointment was to be made on the post of Manager, Accounts
Officer, Accountant, Assistant Accountant, Depot Manager etc.
The advertisement also prescribed pay scale which was then
prevalent in the State Government as per the recommendation of
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the 5 Pay Revision Committee. The respective original Writ
Petitioners in both the writ petitions were the employees of the
Bihar State Corporation Coordinating Unit (BISCOMAUN); Bihar
State Pharmaceutical and Chemical Development Corporation;
Bihar State Handloom and Handicraft Development Corporation;
Sone Command Area Development Agency; Land Mortgage Bank;
Pandaul Cooperative Spinning Mills Ltd., as the case may be.
That, all of them applied pursuant to the aforesaid
advertisement. All of them were selected on various posts in the
Corporation.
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3.1 It appears that the employees working with the Corporation
were denied the benefit of the pay scale as per the
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recommendations of the 6 Pay Revision Committee. It appears
that, as such, the Board of Directors of the Corporation in its
meeting dated 18.5.2010 resolved that the employees appointed
on deputation/contract would be granted revised pay scale.
However, the Finance Department raised an objection against
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grant of revision of pay scale as per the 6 Pay Revision
Committee to the employees on deputation and/or contract basis
working with the Appellant Corporation and advised the
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Corporation to grant the benefit of 6 Pay Revision Committee
only to the employees of the Corporation and not the employees
working in the Corporation on deputation. It appears that,
thereafter, the Board of the Corporation in its meeting passed a
resolution on 27.3.2012 (as per the Corporation, the said
resolution was passed in the light of the letter dated 30.11.2011
of the State Government) and it was resolved that all those
employees working with the Appellant Corporation on deputation
shall be paid the pay scale payable in their parent Corporation
and deputation allowance.
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3.2 Therefore, the original Writ Petitioners preferred the
aforesaid writ petitions before the High Court for an appropriate
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direction to the Corporation to grant them the pay scale of 6 Pay
Revision Committee with effect from 1.1.2006 notionally and
financial benefit with effect from 1.4.2007. In CWJC No. 9760 of
2012, one additional prayer was made for quashing of the
resolution of the Board of Directors dated 27.3.2012.
4. That the learned Single Judge though found that if the
resolution dated 27.3.2012 is implemented, in that case, there
will be disparity in the payment of salary to the original writ
petitioners and other employees of the Corporation working on
deputation and doing the same nature of work for the same post,
dismissed both the petitions on the ground that if the original
Writ Petitioners who are on deputation are given the pay scale of
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the 6 Pay Revision Committee, the other employees working in
the parent Corporation would be getting the less salary as their
respective parent Corporations/Boards have not implemented
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and/or granted the benefit of the 6 Pay Revision Committee. By
dismissing the writ petitions, learned Single Judge also
considered Rule 282 and 283 of the Bihar Service Code.
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However, while dismissing the petitions, the learned Single Judge
gave the liberty to the writ petitioners to file the individual
representation explaining the disparity in the matter of payment
of their salary vizaviz their counterpart working on the same
post and doing the same nature of work and directed the
Corporation to take an appropriate decision. Learned Single
Judge also observed that if such decision is in favour of the Writ
Petitioners, then the said decision shall be given effect from
15.5.2012, the date on which the Corporation’s decision dated
27.3.2012 was implemented.
4.1 Feeling aggrieved and dissatisfied with the judgment and
order of the learned Single Judge dismissing the writ petitions,
the original Writ Petitioners preferred the aforesaid Letters Patent
Appeal No. 112 of 2016 and Letters Patent Appeal No. 568 of
2016. That, by impugned common judgment and order, the
Division Bench has allowed both the Letters Patent Appeals and
quashed and set aside the common judgment and order passed
by the learned Single Judge and consequently the resolution of
the Corporation dated 27.3.2012 and directed the Corporation to
follow the “Principle of Equal wages for equal work” in the matter
of grant of pay scale. The Division Bench also directed the
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Corporation to pay the revision of pay scales in terms of the 6
Pay Revision Committee and resolution of the Board of Directors
dated 18.5.2010.
4.2 Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the Division Bench, the
Bihar State Beverages Corporation Ltd. and others have preferred
the present appeals.
5. Learned counsel appearing on behalf of the Appellant
Corporation has vehemently submitted that, in the facts and
circumstances of the case, the Division Bench of the High Court
has erred in quashing and setting aside the resolution of the
Corporation dated 27.3.2012, as well as has materially erred in
directing the Appellant Corporation to grant pay scale to the
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Respondents in terms of 6 Pay Revision Committee. It is
vehemently submitted by the learned counsel appearing on
behalf of the Appellant Corporation that while passing the
impugned judgment and order and granting the reliefs, the
Division Bench has not properly appreciated and/or considered
the provisions contained under Rule 282 and 283 of the Bihar
Service Code. It is submitted that, therefore, the impugned
judgment and order passed by the Division Bench of the High
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Court is thus contrary to the statutory provisions, more
particularly, Rule 282 and 283 of the Bihar Service Code. It is
submitted that considering Rule 282 and 283 it was decided to
pay salaries to the Respondents herein in the scale which they
are/were getting in their parent organizations. It is submitted
that, therefore, the Resolution dated 27.3.2012 cannot be said to
be either discriminatory and/or violative of Articles 14 and 16 of
the Constitution of India.
5.1 It is further submitted by the learned counsel appearing on
behalf of the Appellant Corporation that, as such, the Appellant
Corporation had not fixed any scale for any post before engaging
any of the Respondents. It is submitted that the only standard
fixed by the Corporation was the pay scale received by them in
their parent organization and as all the Respondents are from
different Boards/Organizations, they cannot claim parity in the
pay scale from the Corporation, since the Corporation does not
have permanent employees of its own and the Respondents have
not even been absorbed by the Appellant Corporation.
5.2 It is further submitted by the learned counsel appearing on
behalf of the Appellant Corporation that, even otherwise, the
Division Bench of the High Court has materially erred in granting
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the reliefs by applying the “Principle of equal pay for equal work”.
It is submitted that as the Respondents are “not equal” to the
State Government employees nor employees of the Appellant
Corporation and, therefore, the “Principle of equal pay for equal
work” shall not be applicable. It is submitted that as held by this
Court in State of Haryana v. Charanjeet Singh (2006) 9 SCC
321, the “Principle of equal pay for equal work” cannot apply
unless there is a complete and wholesale identity between two
groups.
5.3 It is further submitted by the learned counsel appearing on
behalf of the Appellant Corporation that the High Court has failed
to appreciate and consider the fact that the Appellant
Corporation has a separate legal entity and must always be
treated as a foreign service.
5.4 It is further submitted that none of the Respondents
original Writ Petitioners were appointed on permanent basis with
the Appellant Corporation and had their lien still continuing with
the parent organization and all are working with the Appellant
Corporation either on deputation or on contract basis. It is
submitted that none of the parent organizations of the respective
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Respondents has yet implemented the 6 PRC. It is submitted
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that, therefore, as the Respondents were working with the
Appellant Corporation on deputation and/or on contract basis,
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shall not be entitled to the pay scale as per the 6 PRC. It is
submitted that, therefore, the High Court has materially erred in
directing the Appellant Corporation to pay/grant pay scale to the
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Respondents in terms of the 6 PRC.
5.5 Making the above submissions, it is prayed to allow the
present Appeals.
6. Both these appeals are vehemently opposed by the learned
counsel appearing on behalf of the original Writ Petitioners.
6.1 It is vehemently submitted by the learned counsel appearing
on behalf of the Respondents herein – original Writ Petitioners
that the impugned judgment and order passed by the Division
Bench of the High Court is absolutely in line with Rule 282 and
283 of the Bihar Service Code, which permits the organization in
which a Government employee is sent on deputation to offer and
pay more benefits/salary to the extent of 25%. It is submitted
that, even otherwise, Rule 282 and 293 of the Bihar Service Code
shall not be applicable as none of the Respondents was an
employee of the Government.
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6.2 It is further submitted by the learned counsel appearing on
behalf of the Respondents herein that, even otherwise, on the
“Principle of Equal Pay for Equal Work” and having found that
there cannot be any separate pay scale for the employees of the
Corporation doing the same/similar work. It is submitted that,
as such, even the learned Single Judge also specifically observed
that there is a disparity in the pay scale amongst the employees
of the Corporation itself and, therefore, even the learned Single
Judge also allowed/permitted the original Writ Petitioners to
make a representation to the Corporation.
6.3 It is further submitted by the learned counsel appearing on
behalf of the Respondents herein that at the time when the
advertisement was issued inviting the applications, in the
advertisement itself, specific pay scales against the respective
posts were mentioned. It is submitted that, thereafter, to pay
anything less than what was stated in the advertisement would
be changing the conditions of service, which is not permissible.
6.4 It is submitted that, therefore, having specifically found that
there shall be disparity in the pay scale amongst the employees of
the Corporation, the same shall be violative of Article 14 of the
Constitution of India, even applying the “Principle of Equal Pay
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for Equal Work”, the High Court has rightly quashed and set
aside the Resolution dated 27.3.2012.
6.4 Now, so far as the impugned judgment and order passed by
the Division Bench of the High Court directing the Appellant
Corporation to grant the pay scale to the Respondents as per the
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6 PRC is concerned, it is submitted that, as such, the
Corporation itself in the year 2010 took a conscious decision to
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adopt and grant the benefit of 6 PRC to the employees of the
Corporation. However, it was on the advice of the Finance
Department, the Corporation did not grant the benefit. It is
submitted that the Finance Department advised that the benefit
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of 6 PRC can be given to the permanent employees of the
Corporation and may not be given to the employees who are on
deputation or on contract basis. It is submitted that it is an
admitted position that there is not a single employee working in
the Corporation who is appointed on permanent basis and the
entire staff/employees of the Corporation are either on
deputation or contract basis who are/were employees of other
Boards/Corporations. It is submitted that, therefore, the
Division Bench of the High Court has rightly observed that such
an advice of the Finance Department is a nonapplication of
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mind. It is submitted that, therefore, the High Court has rightly
granted the relief and has rightly directed the Appellant
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Corporation to pay the pay scale as per the 6 PRC as per their
own decision in 2010.
6.5 Making the above submissions, it is prayed to dismiss the
present appeals.
7. Heard learned counsel appearing on behalf of the parties at
length.
7.1 At the outset, it is required to be noted that by impugned
judgment and order the Division Bench of the High Court has
directed the Appellant Corporation to grant the benefit of pay
scale to the Respondents herein – original Writ Petitioners as per
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the 6 PRC, as per the decision of the Corporation itself in 2010.
By the impugned judgment and order, the High Court has also
quashed and set aside the resolution of the Corporation dated
27.3.2012, by which it was resolved to pay the salary to the
employees of the Corporation as is being paid to the employees
working in the parent organizations.
8. Now, so far as the quashing and setting aside the resolution
dated 27.3.2012 by which the Corporation resolved to pay salary
to the employees of the Corporation as is being paid in the parent
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Board/parent organization is concerned, it is required to be
noted that it is not in dispute that the respective original Writ
Petitioners are on deputation from different
Boards/Organizations. Therefore, if the resolution dated
27.3.2012 is permitted to be implemented, in that case, there
shall be disparity in the pay scale/salary of the employees of the
Corporation doing the same/similar work. There may be
different pay scales/salaries in the respective parent
organizations. However, when they are working with the
Corporation and doing the similar work, they have to be paid the
salary which is paid to other employees doing the same/similar
work. It is not in dispute that the employees working on different
posts in the Corporation are doing the same/similar work.
Therefore, the Division Bench of the High Court has rightly
applied the ‘Principle of Equal Pay for Equal Work’ and has
rightly quashed and set aside the resolution dated 27.3.2012.
8.1 Challenge to the resolution dated 27.3.2012 is also required
to be considered from another angle. At the time of
advertisement and inviting the applications, the employees were
offered the specific pay scales against respective posts. It
appears that the pay scale which was offered and thereafter paid
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by it till the resolution dated 27.3.2012 was at par with the pay
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scale paid to the Government employees as per the 5 PRC.
Therefore, thereafter, to pay any salary/pay scale lesser than
what was offered at the time of inviting the applications would be
changing the conditions of service, which is not permissible.
8.2 Now, so far as the reliance placed upon Rule 282 and 283 of
the Bihar Service Code by the Appellant Corporation is
concerned, even on considering Rule 282 and 283 of the Bihar
Service Code, it cannot be said that the person sent on
deputation cannot be paid any more salary/emoluments than
what was paid to the Government servant while working with the
Government. Rule 283 reads as under:
“ Rule 283: (a) The pay which a Government
servant is to receive in foreign service shall be
precisely specified in the order sanctioning his
transfer. If it is intended that he shall receive any
remuneration, or enjoy any concession of pecuniary
value, in addition to pay proper, the exact nature of
such remuneration, or concession shall be similarly
specified; and no Government servant shall be
permitted to receive any remuneration or to enjoy any
concession which is not to be so specified.
(b) In determining an appropriate rate of pay, the
authority sanctioning a transfer to foreign service,
shall take into account the value of any concessions
which the Government servant may be permitted to
enjoy, such as –
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(i) The payment by the foreign employer of
contributing towards, leave salary and pension;
(ii) the grant of free residential accommodation
and any benefit or advantages connected
therewith; and
(iii)the grant of traveling allowance at special
rates, and the use of tents, conveyances, animals
etc., belonging to the foreign employer.
(c) The terms granted to a Government servant who is
transferred to foreign service shall not be so greatly in
excess of remuneration which he would receive in
Government service, as to render foreign service
appreciably more attractive than Government service.
(d) No order of transfer to foreign service shall be
issued by the State Government without previous
consultation with the Finance Department.
(e) In cases where the power to sanction such transfer
has been delegated to a subordinate authority, the
initial pay of the Government servant transferred shall
not, without the special orders of the State
Government, exceed by more than 25 percent, the
substantive pay last drawn by him in Government
service and no concessions in addition to pay shall be
sanctioned except the following: (i) the payment by
the foreign employer of contributions towards leave
salary and pensions; and (ii) the grant of travelling
allowance on the scale prescribed in the Bihar
Travelling Allowance Rules.”
8.3 On fair reading of Rule 283(c) and Rule 283(e), it can be
seen that it is permissible for the foreign service to pay something
more than what the employees were getting in the parent
department. Therefore, the interpretation on behalf of the
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Corporation on reading Rule 283 that the employee sent on
deputation to a foreign service has to be paid the same
salary/pay scale which he was getting in the parent department,
cannot be accepted. Therefore, reliance placed on Rule 282 and
283 of the Bihar Service Code while passing the resolution dated
27.3.2012 was absolutely either misplaced and/or on mis
interpretation and, therefore, the same is rightly set aside by the
High Court. We are in complete agreement with the view taken
by the Division Bench in quashing the resolution dated
27.3.2012.
9. Now, so far as the impugned judgment and order passed by
the High Court directing the Appellant Corporation to grant pay
scale to the Respondents herein – original Writ Petitioners as per
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the 6 PRC is concerned, it is required to be noted that, as such,
the Appellant Corporation itself took a conscious decision in the
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year 2010 to grant the benefit of 6 PRC to the employees
working with the Corporation. However, on the advice of the
Finance Department that the Corporation may grant the benefit
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of 6 PRC to their permanent employees and not to the
employees on deputation, the Corporation thereafter took a
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decision not to grant the benefit of the pay scale as per the 6
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PRC. As rightly held by the Division Bench of the High Court, the
advice by the Finance Department was nonapplication of mind,
inasmuch so far as the Corporation is concerned, there is not a
single employee appointed by the Corporation on permanent
basis and the entire staff is either on deputation or on contract
basis from other Boards/organizations. Therefore, the Division
Bench of the High Court has rightly directed the Appellant
Corporation to grant the pay scale to the Respondents – original
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Writ Petitioners as per the 6 PRC. However, at the same time, it
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is to be clarified that they will get the pay scale as per the 6 PRC
so long as they continue to work with the Appellant Corporation
and as and when they are repatriated, in that case, they shall be
governed by the pay scale paid to the employees in the parent
Board/Organization.
10. In view of the above submissions and for the reasons stated
hereinabove, both the present Appeals fail and they deserve to be
dismissed and are accordingly dismissed. However, it is clarified
that the original Writ Petitioners shall be entitled to the pay scale
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as recommended by the 6 PRC so long as they work in the
Appellant Corporation and as and when and in case they are
repatriated to their parent Board/Organization they shall be
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governed by the pay scales paid to the employees of the
concerned parent Board/Organization. No costs.
……………………………………J.
(L. NAGESWARA RAO)
……………………………………J.
(M. R SHAH)
New Delhi;
February 05, 2019.