REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3481 OF 2009

[Arising out of SLP (Civil) No. 5163 of 2007]

Food Corp. of India & Ors. …Appellants

Versus

Ashis Kumar Ganguly & Ors. …Respondents

J U D G M E N T

S.B. SINHA, J :

1. Leave granted.

2. Food Corporation of India constituted and incorporated under the

Food Corporations Act, 1964 (for short “the Act”) is before us

questioning the correctness of a judgment and order dated 29.11.2006

passed by a Division Bench of the Calcutta High Court in F.M.A. No. 356

of 2002 directing it to grant advance increments to 57 deputationist

employees.

3. The services of the employees of the Food Department of the

Central Government as also the State Government were initially taken for

running the affairs of the Corporation. Respondents before us were

employees of the State of West Bengal. They were on deputation to the

Food Corporation of India from several States.

4. The Act was enacted to provide for the establishment of Food

Corporations for the purpose of trading in foodgrains and other foodstuffs

and for matters connected therewith and incidental thereto. The matter

relating to recruitment of staff in the Food Corporation of India is

governed by Section 12 of the Act, which reads as under:

“12.Officers and other employees of

Corporation – (1) The Central Government

shall, after consultation with the Corporation,

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appoint a person to be the Secretary of the

Corporation.

(2)Subject to such rules as may be made by

the Central Government in this behalf, the

Corporation may appoint such other officers and

employees as it considers necessary for the

efficient performance of its functions.”

5. In the year 1968, however, Section 12A was inserted in the Act so

as to enable the Central Government to make an order directing its

employees to be transferred to the services of the Food Corporation of

India. Those employees who had been working as deputationists from

the Central Government were absorbed. They admittedly were given one

extra increment purported to be on the basis of a circular letter issued in

this behalf. In the year 1984, an option was given to the respondents

herein for being absorbed in the Food Corporation of India upon

tendering resignation in their parent cadre; pursuant to or in furtherance

whereof the respondents herein opted to join the Food Corporation of

India. They were so absorbed but were posted as Assistant Grade III.

They filed a writ petition questioning their absorption in the said grade

contending that they were entitled to be posted as Assistant Grade II. The

said question came up before this Court in Food Corporation of India &

Ors. v. F.C.I. Deputationists Assocn. & Ors. [SLP (C) No. 16416 of

3

1996] and by a judgment and order dated 29.08.1996, it was opined that

the respondents were entitled to the post of Assistant Grade II.

6. Respondents thereafter filed a writ petition in the year 1997 inter

alia contending that in terms of the proviso appended to Regulation 81 of

the Food Corporation of India (Staff) Regulations, 1971 (for short “the

Regulations”), they were entitled to grant of one additional increment.

The said writ petition has been allowed by a learned Single Judge of the

Calcutta High Court and affirmed by the Division Bench thereof on an

intra-court appeal filed by the appellants herein

7. The learned Additional Solicitor General appearing on behalf of

the appellants would contend:

(i) The High Court committed a serious error insofar as it failed

to take into consideration that the employees deputed from the

State of West Bengal and from the Central Government stand on

different footings and in view of the fact that they formed

different classes, no discrimination inter se amongst the said

employees cannot be held to have been committed by the

appellants.

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(ii)Proviso appended to Regulation 81 of the Regulations is not

applicable in the cases of the respondents as they were not the

first appointees. Such a regulation having been framed with a

view to attract the best talent in higher posts, the same was not

applicable to the case of the respondents.

(iii)In any view of the matter, the said regulation providing for

exercise of discretion on the part of the appointing authority, nor writ

of or in the nature of mandamus could be issued.

8. Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of

the respondents, on the other hand, urged:

(i) A rule similar to Regulation 81 of the Regulations was

available even prior to framing thereof and, thus, it is incorrect

to say that such a benefit was conferred upon the Central

Government employees by reason of a separate rule as

concededly, the nature and content of the job required to be

performed by the employees whether drawn from the Central

Government or from the State Government being the same, no

discrimination could be caused amongst the employees similarly

situated.

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(ii)The writ petition having immediately been filed after the

decision of this Court, it was not barred by delay or laches.

9. Upon establishment of the Food Corporation of India, several

circular letters were issued. The said circular letters were compiled in an

Office Manual; Paragraph 4.70 whereof reads as under:

“4.70 Pay on first appointment

The pay of an employee on first appointment to

a post in the service of the Corporation shall be

fixed at the minimum of the time scale

applicable to the post to which he is appointed,

or where the post is on a fixed pay, such fixed

pay.

Provided that where any person appointed

to a post to which a time-scale is applicable has

been in continuous service for a period of not

less than 2 years in any Department of the

Central or any State Government or any Public

Sector or Private Sector Undertaking

immediately preceding such appointment, the

appointing authority may in its discretion fix the

pay at the stage in the time-scale applicable to

the pay of the post next higher than the pay last

drawn by him in such department or

undertaking and may in addition, in his

discretion, grant one advance increment.

Provided also that in no case shall the pay be

fixed at higher than the maximum of the time-

scale.”

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10. First Appellant thereafter framed the Staff Regulations, 1971 inter

alia laying down the terms and conditions of service of the employees.

Regulation 81 of the Regulations reads as under:

“81.Pay on first appointment:

The pay of an employee on first appointment to

a post in the service of the Corporation shall be

fixed at the minimum of the time scale

applicable to the post to which he is appointed,

or where the post is on a fixed pay, such fixed

pay.

Provided that where any person appointed to a

post to which a time-scale is applicable has been

in continuous service for a period of not less

than 2 years in any Department of the Central or

any State Government or any Public Sector or

Private Sector Undertaking immediately

preceding such appointment, the appointing

authority may in its discretion fix the pay at the

stage in the time-scale applicable to the pay of

the post next higher than the pay last drawn by

him in such department or undertaking and may

in addition in his discretion, grant one advance

increment.”

11. On or about 19.11.1965, the Food Corporation of India issued a

circular letter stating that the transferees and deputationists were to be

brought to the scales of pay of the Corporation as contained in Para 4.8 of

the Manual with effect from 1.04.1965, subject to the instructions

contained therein which inter alia are as under:

“Fixation of pay in the case of transferees

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2)Transferees from the Food Department

may either opt for the Corporation pay scales or,

if they so choose, retain their existing scales of

pay.

3)(a)In the case of transferees from the Food

Department, who have put in not less than two

years’ continuous service in that Department

and who have opted for the Corporation’s scales

of pay, pay may be fixed after giving them the

benefit of the first proviso to Regulation 70 of

the draft Staff Regulations (paragraph 5.70 of

the Manual) i.e., by allowing fixation of pay at

the stage in the time-scale applicable to the post

next higher than the pay last drawn and the

grant of one advance increment, provided that

the total monetary benefit resulting from the

fixation of pay on the above basis does not

exceed the limits specified below:-

Corporation’s pay scale ending at Rs.

250/- or less

..Rs. 10/-

Corporation’s pay scale ending at Rs.

550/- or less but above Rs. 250/-

..Rs. 20/-

Corporation’s pay scale ending at Rs.

700/- or less, but above Rs. 550/-

..Rs. 40/-

Corporation’s pay scale ending at Rs.

1000/- or less, but above Rs. 700/-

..Rs. 60/-

Corporation’s pay scale ending at above

Rs. 1000/-

..Rs. 75/-

(b)Where as a result of fixation of pay in

accordance with the above principles, the

maximum monetary limits mentioned are

exceeded, pay should be fixed at the next higher

stage than the pay actually last drawn by an

employee, without granting an advance

increment, but personal pay should be allowed

to the extent necessary in order to enable the

employee to derive a total monetary benefit upto

the maximum limit specified above, such

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personal pay being absorbed in future

increments, i.e., the difference between the

present pay in the Food Department plus the

maximum monetary benefit mentioned above,

and the revised pay in the new scale (fixed at

the next higher stage without an advance

increment) should be allowed as personal pay to

be absorbed in future increments. It should,

thus, be ensured that the total monetary benefit

to an employee does not in any case exceed the

above maxima.”

12. Our attention has also been drawn by the learned Additional

Solicitor General to the following illustration:

“Pay in the parent

office with the

scale (on the day

of fixation)

Scale in the

Corporation to

which appointed

Stage at which to

be fixed

Pay on next

increment drawn

in Corporation

450/- in the scale

of 350-20-450-25-

475

350-25-500-30-

620-40-700

475 + 15 P.P. to

be absorbed in

future increments

(next stage plus

part of increment,

maximum

monetary benefit

limited to Rs. 40/-)

550/-”

13. Indisputably, the respondents were deputationists. They were

absorbed in terms of a circular letter issued on 19.03.1984; the relevant

conditions whereof read as under:

“(i)The State Government employees who

opt for permanent absorption in the service of

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the Corporation will be treated as direct recruit

and will be subject to the terms and conditions

as prescribed in FCI (Staff) Regulations, 1971.

(ii)They will count their seniority in the post/

grade in which they are absorbed from the date

of absorption in the Corporation.

(iii)Details indicating the post and the scale

of pay held by the State Government

Deputationists as also the corresponding post in

the F.C.I. and the scales of pay attached to the

post is indicated in Annexure – II. The

employees who opt for absorption in the

Corporation will be initially appointed to the

corresponding post indicated therein.

(iv)West Bengal State Government

employees who have been on deputation in

F.C.I. for a period of at least five years as on

30

th

April, 1984 will only be eligible for

absorption in the service of the Corporation.”

14. Options having been exercised by the respondents pursuant thereto,

they were appointed in the appellant – corporation.

15. Before coming into force of the 1971 Regulations, as noticed

hereinbefore, paragraph 4.70 of the Manual was applicable. The

Corporation, therefore, had all along been keen to obtain the services of

government employees working in the Food Departments of the States

evidently because they did have the requisite experience. It is not denied

or disputed that those employees were appointed to a post to which a time

scale was applicable. They were in continuous service for not less than

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two years. Paragraph 4.70 of the Manual and Regulation 81 of the

Regulations are attracted both in the case of the Central Government

employees and the State Government employees. Concededly, in the case

of the Central Government employees, the said benefit had been

extended.

16.Before the High Court, the Corporation conceded that the nature of

duties, qualification and service conditions of both set of employees stand

on similar footings.

17. The deputationists were not the employees of the Corporation.

They were still on the State Cadre. They became the employees only on

their absorption. The circular letter inviting options stated so in

unmistakable terms.

18. The learned Additional Solicitor General drew our attention to the

statements made in the rejoinder affidavit to show as to how the Central

Government employees were different from that of the State Government

employees.

Only because, according to the Corporation, they were treated

differently, in our opinion, by itself cannot be a ground not to apply the

rules applicable to the employees of the Food Corporation of India on

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their absorption in the services of the Food Corporation of India only

because they have been taken from the different sources. Different

treatments meted out to the respondents vis-à-vis the Central Government

employees although drawn from separate cadre, for the purpose of grant

of benefit to one class only, would, in our opinion, amount to

discrimination.

19.This Court, in its judgment and order dated 29.8.1996 passed in

SLP (C) No.16416 of 1996 took notice of the fact that the respondents

herein had served the Corporation for a period of 18 years on deputation

in the post of Assistant Grade-II. The learned Additional Solicitor

General, however, contends that the appellants in their first writ

application itself should have prayed for grant of one increment. In this

connection, our attention has been drawn to the statements made in para

23 of the writ application alleging that the appellant had taken an

arbitrary decision to deny the advance increment to those candidates who

had been absorbed at that point of time.

It, however, appears that a representation was filed by the Food

Corporation of India Deputationists Association thereagainst on 8.1.1991.

In the said paragraph of the writ petition, the appellants categorically

12

stated that the said representation had not been disposed of. The said

allegations had not been traversed by the appellants in their counter

affidavit before the High Court. It was, thus, not contended by or on

behalf of the appellant that a decision one way or the other had been

taken by the Corporation in that behalf so as to enable them to raise such

a contention specifically in the earlier writ petition.

Submission of the learned Additional Solicitor General that the

present writ petition was barred under the principles of constructive res

judicata and/or Order II Rule 2 of the Code of Civil Procedure was not

raised before the High Court. Had such a contention been raised, the

respondents would have been able to show that for one reason or the

other and, particularly, in view of the fact that their representations in that

behalf was still pending, the question which has been raised herein could

not have been raised.

20.Mr. Gupta, in our opinion, is correct in his submission that the

question of claiming an additional increment in terms of proviso

appended to Regulation 81 of the Regulations could not have been raised

in the earlier application as the respondents were not certain as to whether

they would be fitted as Assistant Grade-II or Assistant Grade-III.

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21. Strong reliance has been placed by Mr. Saran on a decision of this

Court in State of Tamil Nadu v. Seshachalam [(2007) 10 SCC 137]

wherein this Court held :

“Some of the respondents might have filed

representations but filing of representations

alone would not save the period of limitation.

Delay or latches is a relevant factor for a court

of law to determine the question as to whether

the claim made by an applicant deserves

consideration. Delay and/or latches on the part

of a Government servant may deprive him of the

benefit which had been given to others. Article

14 of the Constitution of India would not, in a

situation of that nature, be attracted as it is well

known that law leans in favour of those who are

alert and vigilant. Opinion of the High Court

that GOMs No. 126 dated 29.5.1998 gave a

fresh lease of life having regard to the legitimate

expectation, in our opinion, is based on a wrong

premise. Legitimate expectation is a part of the

principles of natural justice. No fresh right can

be created by invoking the doctrine of

legitimate expectation. By reason thereof only

the existing right is saved subject, of course, to

the provisions of the statute. {See State of

Himachal Pradesh and Anr. v. Kailash Chand

Mahajan and Ors. 1992 Supp.(2) SCC 351}.”

In view of the fact that such a contention had not been raised

before the High Court and keeping in view the facts and circumstances of

the case, as noticed hereinbefore, we are of the opinion that the

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aforementioned contention should not be permitted to be raised before us

for the first time.

22.The question as to whether the respondents disentitled themselves

from obtaining an equitable relief under Article 226 of the Constitution of

India, because of delay or latches on their part must also be rejected as the

earlier writ petition was disposed of only on 29.8.1996. The writ petition

having been filed in the year 1997 and the order of the Supreme Court

having been given effect on 7.10.1996, it cannot be said that any undue

delay was caused by the respondents in filing the writ petition on

9.9.1997. There cannot be any doubt whatsoever that a writ of or in the

nature of mandamus can be issued only when existence of a legal right in

the writ petitioner and a corresponding legal duty in the respondent are

established.

23.Where the administrative authority is conferred with a

discretionary jurisdiction, the High Court, it was urged, ordinarily would

not issue a writ of mandamus. Our attention in this behalf has been

drawn to a judgment of this Court in The State of Madhya Pradesh v.

G.C. Mandawar [AIR 1954 SC 493] wherein this Court in the context of

exercise of discretionary power in the matter of grant of dearness

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allowance at a particular rate under Rule 44 of the Fundamental Rules,

opined :

“Under this provision, it is a matter of discretion

with the local Government whether it will grant

dearness allowance and if so, how much. That

being so, the prayer for mandamus is clearly

misconceived, as that could be granted only

when there is in the applicant a right to compel

the performance of some duty cast on the

opponent. Rule 44 of the Fundamental Rules

confers no right on the Government servants to

the grant of dearness allowance; it imposes no

duty on the State to grant it. It merely confers a

power on the State of grant compassionate

allowance as its own discretion, and no

mandamus can issue to compel the exercise of

such a power. Nor, indeed, could any other writ

or direction be issued in respect of it, as there is

no right in the applicant which is capable of

being protected or enforced.”

To the similar effect is the decision of this Court in Union of India

v. R. Rajeshwaran & Anr. [(2003) 9 SCC 294] wherein again in the

context of grant of admission in a medical college, reservation of some

seats in some medical colleges, it was held :

“9. In Ajit Singh (II) v. State of Punjab this

Court held that Article 16(4) of the Constitution

confers a discretion and does not create any

constitutional duty and obligation. Language of

Article 15(4) is identical and the view in

Comptroller and Auditor General of India,

Gian Prakash v. K.S. Jagannathan and

16

Superintending Engineer, Public Health v.

Kuldeep Singh that a mandamus can be issued

either to provide for reservation or for

relaxation is not correct and runs counter to

judgments of earlier Constitution Benches and,

therefore, these two judgments cannot be held to

be laying down the correct law. In these

circumstances, neither the respondent in the

present case could have sought for a direction

nor the High Court could have granted the

same.”

The said decisions, in our opinion, cannot be said to have any

application to the facts and circumstances of the present case. A statutory

authority or an administrative authority must exercise its jurisdiction one

way or the other so as to enable the employees to take recourse to such

remedies as are available to them in law, if they are aggrieved thereby.

The question which, however, arises for consideration is as to whether

having exercised its jurisdiction in favour of a class of employees, a

statutory authority can deny a similar relief to another class of employees.

In a case of this nature, in our opinion, the writ court was entitled to

declare such a stand taken by the statutory authority as discriminatory on

arriving at a finding that both the classes are entitled to the benefit of a

statutory rule.

17

It is contended that the deputationists who were the Central

Government employees were transferred in terms of Section 12A of the

Act. We may notice sub-section (3) thereof, which reads as under :

“12.(3) An officer or other employee transferred

by an order made under sub-section (1) shall, on

and from the date of transfer, cease to be an

employee of the Central Government and

become an employee of the Corporation with

such designation as the Corporation may

determine and shall subject to the provisions of

sub-sections (4), (4A), (4B), (4C), (5) and (6) to

be governed by the regulations made by the

Corporation under this Act as respects

remuneration and other conditions of service

including pension, leave and provident fund,

and shall continue to be an officer or employee

of the Corporation unless and until his

employment is terminated by the Corporation.”

As in terms of the aforementioned provision, the employees so

transferred would be deemed to be the employees of the Corporation

upon cessation of the relationship of employer and employee between the

Central Government and themselves and they would be subject to the

provisions of the same regulations.

24.We fail to understand, why the benefit of the said regulations shall

be denied to the employees who were deputed to the Corporation from the

18

State Government cadre. Incidentally, we may notice that even in the

circular letter dated 19.3.1984, it was categorically stated :

“The absorption of the employees will be

subject to the following conditions :

(i)The State Government employees who

opt for permanent absorption in the

service of the Corporation will be treated

as direct recruit and will be subject to the

terms and conditions as prescribed in FCI

(Staff) Regulations, 1971.”

25.If respondents, thus, were to be treated as direct recruits subject to

the terms and conditions and as prescribed in FCI Staff Regulations,

1971, in law they were also required to be treated alike as having entered

the services of the Corporation for the first time. Even their seniority in

the post in which they were absorbed was to be accounted from the date

of absorption in the Corporation. Thus, for all intent and purport, the past

services of the Central Government employees and the State Government

employee whether appointed in the service of the Corporation by way of

transfer or by way of absorption would result in cessation of relationship

of employer and employee between the Central Government or the State

Government as the case may be and the employees concerned. In other

words, until their absorption, the respondents were the employees of the

State Government and they become the employees of the Corporation

19

only upon their absorptions. Furthermore in the cases of both the Central

Government employees as also the State Government employees,

common regulation would bind them since their absorption in the service

of the Corporation either in terms of sub-section (3) of Section 2A of the

Act or in terms of the order of absorption passed in respect of each of the

respondents.

26.Submission of the learned Additional Solicitor General that the

employees transferred from the Central Government and those

deputationists who have been absorbed fall in different classes cannot be

accepted. The learned Additional Solicitor General pointed out the

following purported differences between the two groups of employees:

“a.The services of the food transferees from

Central Government were transferred to

FCI on compulsory/permanent basis after

Central Government Gazette Notification,

in accordance with Section 12A of the

Food Corporations Act, 1964. Whereas

the West Bengal Deputationists were sent

on deputation to FCI as per agreement

with the Government of West Bengal and

FCI.

b.The Food transferees from Central

Government had no option for joining or

otherwise in the FCI on transfer from

RDF. It was compulsory for them.

Whereas there was no compulsion for

West Bengal Deputationists for their

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absorption in FCI. They had an option

either to be repatriated to their parent

department. Govt. of West Bengal or to

be inducted in FCI as per FCI, HQ

circular No.21 of 19.3.1984.

c.After the transfer of the services of the

Food transferees from Central

Government to FCI, their parent

department was wound up except for

existence of power with 1 or 2 officers to

settle their pension cases. Whereas

existence of the parent department of

West Bengal Deputationists i.e. Food &

Supplies Department, Government of

West Bengal with manpower was/is all

along there.

d.The Food transferees from Central

Government did not have to tender any

resignation with their parent department

for transfer of their services to FCI.

Whereas the deputationists emplopyees

had to resign from the Department of

Food & Supplies of West Bengal before

their absorption in FCI.

e.The Food transferees from Central

Government enjoyed continuity of their

services. They were the food

“Transferees”. Whereas by virtue of the

option exercised with FCI by the

Deputationists Employees, their status is

of a direct recruit w.e.f. 01.07.1984.

f.On joining FCI, the Food transferees from

Central Government did not get any

gratuity from their parent department in

respect of their services rendered with the

Government of India. Whereas the

Deputationists Employees had received

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their gratuity and pro-rata pension from

their parent department for the services

they rendered with the Government of

West Bengal.

g.FCI Staff Regulations, 1971 was not in

existence at the initial stage of the

transfer of the RDR Employees in FCI.

Whereas at the time of the absorption of

the Deputationist Employees in FCI, the

FCI (Staff) Regulations, 1971 were in

existence.”

27.We would deal with them in seriatum.

a.The conditions of service of employees from two different sources

can not be different only because they were recruited from different

sources. In view of the fact that both the set of employees were governed

by the same set of regulations, it would not be correct to contend that the

transferees from the Central Government had no option.

b. It was for the Central Government to issue an appropriate

notification in terms of Section 12A(1) of the Act. Only when such an

order was issued, sub-section (3) thereof would come into play.

Applicability of a rule would not depend upon the question as to whether

the respondents had an option either to be repatriated to their parent

department or not inasmuch as the rule became applicable only on their

absorption and not prior thereto.

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c.No additional fact has been placed before us in support of the

statement that the entire Food Department was wound up. Even if that be

so, in absence of any such regulation governing their cases, they could

have been given the benefit of an additional increment to which other

employees were also entitled to.

d.For the aforementioned reasons, in our opinion, it is wholly

immaterial as to whether cessation of relationship of employer and

employee took place by reason of resignation or by transfer.

e.In view of the terms and conditions of transfer so far as the Central

Government employees are concerned and the option exercised by the

deputationists as well the effect of Regulation 81, there is no force in the

aforementioned contention.

f.As in the case of the employees of the Central Government, the

continuity of service had been maintained only because the deputationists

had received their gratuity and pro-rata pension from their parent

department, in our opinion would not make any difference as the sole

question was as to whether the proviso appended to Rule 81 was

applicable in their case or not.

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g.We have noticed hereinbefore that even before coming into force

of the FCI Staff Regulations, 1971, there existed a similar provision by

way of paragraph 4.68 of the Mannual. Thus, whereas in the case of the

Central Government employees, the earlier provisions were applied, in

the case of the State Government employees, the regulations are to be

made applicable.

28.Submission of the learned Additional Solicitor General that Article

14 of the Constitution of India postulates a valid classification cannot be

said to have any application in the instant case. The High Court, in our

opinion, has rightly found that in the matter of grant of benefits under

proviso appended to Regulation 81, all the employees were similarly

situated. In a case of this nature, legal right of the respondents emanated

from violation of the equality clause contained in Article 14. If they were

otherwise similarly situated, there was absolutely no reason why having

regard to the provisions contained in Article 39A of the Constitution of

India, the respondents should be treated differently.

It is, therefore, not a case where persons differently situated are

being treated differently as was submitted by Mr. Saran. Equally

meritless is the plea of the learned Additional Solicitor General that

fixation of pay-scale should be left to the expert or employer. Strong

24

reliance has been placed in this connection on State of Haryana & Ors. v.

Charanjit Singh & Ors. [(2006) 9 SCC 321], wherein this Court has held :

“19. Having considered the authorities and the

submissions we are of the view that the

authorities in the cases of Jasmer Singh, Tilak

Raj, Orissa University of Agriculture &

Technology and Tarun K. Roy lay down the

correct law. Undoubtedly, the doctrine of “equal

pay for equal work” is not an abstract doctrine

and is capable of being enforced in a court of

law. But equal pay must be for equal work of

equal value. The principle of “equal pay for

equal work” has no mechanical application in

every case. Article 14 permits reasonable

classification based on qualities or

characteristics of persons recruited and grouped

together, as against those who were left out. Of

course, the qualities or characteristics must have

a reasonable relation to the object sought to be

achieved. In service matters, merit or experience

can be a proper basis for classification for the

purposes of pay in order to promote efficiency

in administration. A higher pay scale to avoid

stagnation or resultant frustration for lack of

promotional avenues is also an acceptable

reason for pay differentiation. The very fact that

the person has not gone through the process of

recruitment may itself, in certain cases, make a

difference. If the educational qualifications are

different, then also the doctrine may have no

application. Even though persons may do the

same work, their quality of work may differ.

Where persons are selected by a Selection

Committee on the basis of merit with due regard

to seniority a higher pay scale granted to such

persons who are evaluated by the competent

authority cannot be challenged. A classification

25

based on difference in educational qualifications

justifies a difference in pay scales. A mere

nomenclature designating a person as say a

carpenter or a craftsman is not enough to come

to the conclusion that he is doing the same work

as another carpenter or craftsman in regular

service. The quality of work which is produced

may be different and even the nature of work

assigned may be different. It is not just a

comparison of physical activity. The application

of the principle of “equal pay for equal work”

requires consideration of various dimensions of

a given job. The accuracy required and the

dexterity that the job may entail may differ from

job to job. It cannot be judged by the mere

volume of work. There may be qualitative

difference as regards reliability and

responsibility. Functions may be the same but

the responsibilities make a difference. Thus

normally the applicability of this principle must

be left to be evaluated and determined by an

expert body. These are not matters where a writ

court can lightly interfere. Normally a party

claiming equal pay for equal work should be

required to raise a dispute in this regard. In any

event, the party who claims equal pay for equal

work has to make necessary averments and

prove that all things are equal. Thus, before any

direction can be issued by a court, the court

must first see that there are necessary averments

and there is a proof. If the High Court is, on

basis of material placed before it, convinced that

there was equal work of equal quality and all

other relevant factors are fulfilled it may direct

payment of equal pay from the date of the filing

of the respective writ petition. In all these cases,

we find that the High Court has blindly

proceeded on the basis that the doctrine of equal

pay for equal work applies without examining

any relevant factors.”

26

In Union of India & Ors. v. Dineshan K.K. [(2008) 1 SCC 586], it

was stated

“16. Yet again in a recent decision in State of

Haryana v. Charanjit Singh a Bench of three

learned Judges, while affirming the view taken

by this Court in State of Haryana v. Jasmer

Singh, Tilak Raj8, Orissa University of

Agriculture & Technology v. Manoj K. Mohanty

and Govt. of W.B. v. Tarun K. Roy has reiterated

that the doctrine of equal pay for equal work is

not an abstract doctrine and is capable of being

enforced in a court of law. Inter alia, observing

that equal pay must be for equal work of equal

value and that the principle of equal pay for

equal work has no mathematical application in

every case, it has been held that Article 14

permits reasonable classification based on

qualities or characteristics of persons recruited

and grouped together, as against those who are

left out. Of course, the qualities or

characteristics must have a reasonable relation

to the object sought to be achieved.

Enumerating a number of factors which may not

warrant application of the principle of equal pay

for equal work, it has been held that since the

said principle requires consideration of various

dimensions of a given job, normally the

applicability of this principle must be left to be

evaluated and determined by an expert body and

the court should not interfere till it is satisfied

that the necessary material on the basis whereof

the claim is made is available on record with

necessary proof and that there is equal work of

equal quality and all other relevant factors are

fulfilled.”

27

In Haryana State Minor Irrigation Tubewells Corportion & Ors. v.

G.S. Uppal & Ors. [(2008) 7 SCC 375]

“19. In S.B. Vohra case this Court dealing with

the fixation of pay scales of officers of the High

Court of Delhi (Assistant Registrars) held that

the fixation of pay scales is within the exclusive

domain of the Chief Justice, subject to approval

of President/Governor of the State and the

matter should either be examined by an expert

body or in its absence by the Chief Justice and

the Central or State Government should attend

to the suggestions of the Chief Justice with

reasonable promptitude so as to satisfy the test

of Article 14 of the Constitution of India.

Further, it was observed that financial

implications vis-à-vis effect of grant of a

particular scale of pay may not always be a

sufficient reason and differences should be

mutually discussed and tried to be solved.

20. In State of Haryana case this Court held that

the High Court was in error in allowing the

parity in pay scale to State Civil Secretariat PAs

with Central Secretariat PAs merely because the

designation was same, without comparing the

nature of their duties and responsibilities and

qualifications for recruitment and without

considering the relevant rules, regulations and

executive instructions issued by the employer

and governing the cadre concerned.

21. There is no dispute nor can there be any to

the principle as settled in the abovecited

decisions of this Court that fixation of pay and

determination of parity in duties is the function

of the executive and the scope of judicial review

of administrative decision in this regard is very

28

limited. However, it is also equally well settled

that the courts should interfere with the

administrative decisions pertaining to pay

fixation and pay parity when they find such a

decision to be unreasonable, unjust and

prejudicial to a section of employees and taken

in ignorance of material and relevant factors.

(See K.T. Veerappa v. State of Karnataka)”

Such a question does not arise in this case as it has been found that

the action on the part of the appellant is grossly arbitrary.

29.It was furthermore contended by Mr. Saran that in the event a

finding is arrived at that the Central Government employees had been

given, an advance increment wrongly, similar benefit may not be granted

to the respondents on the premise that no equality can be claimed in

illegality. Such a case has never been made out by the appellants. Even

otherwise, we are of the opinion, the Central Government employees have

rightly been given the benefit of one additional increment in terms of the

proviso appended to Regulation 81 of the Regulations.

30.For the reasons aforementioned, there is no merit in this appeal

which is dismissed accordingly. However, in the facts and circumstances

of the case, there shall be no order as to costs.

………… ……………….J.

29

[S.B. Sinha]

..…………… ……………J.

[Cyriac Joseph]

NEW DELHI;

MAY 12, 2009

30