REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3336 OF 2009

[Arising out of SLP (Civil) No. 15718 of 2006]

Haryana State Electricity Board & Anr. …Appellants

Versus

Gulshan Lal & Ors. …Respondents

With

CIVIL APPEAL NOS. 3362, 3363, 3364, 3365, 3366, 3367, 3368, 3369,

3370, 3371, 3372 & 3373 OF 2009

[Arising out of SLP (Civil) No. 16789, 16790, 16792, 16791, 16788, 16539,

20442, 20440, 20439, 20437, 17236 and 15758 of 2006]

J U D G M E N T

S.B. SINHA, J :

1. Leave granted.

2.Appellant is before us aggrieved by and dissatisfied with a judgment

and order dated 24.04.2006 passed by a Division Bench of the Punjab and

Haryana High Court in several writ petitions filed by the respondents herein

allowing their writ petitions.

3. Appellant is constituted and registered under the Electricity (Supply)

Act, 1948. It is engaged in generation and supply of electrical energy in the

State of Haryana. It generates thermal power at two places, viz., Panipat and

Faridabad. Both the said plants appear to have different cadre strength. For

better appreciation of designations of different cadres carried out in the said

two thermal power plants, we may notice the following chart :

Thermal Power Station at PanipatThermal Power Station at Faridabad

Scale

w.e.f.

Name of PostPay

Scale

Scale

w.e.f.

Name of PostPay Scale

01.04.79Sr. Technician

Technician

700-1250

600-1100

01.04.79Sr. Technician

(Instrumentation)

Technician

(Instrumentation)

450/760

400/700

01.01.86Sr. Technician

(Re-designated

as Foreman

Gr.-I as on

15.01.86

Technician

(Re-designated

as Foreman

Gr. – II)

1600-

2600

1400-

2600

01.01.86Sr. Technician

(Instrumentation)

(Re-designated

as Technician

Gr. – I as on

15.01.86)

Technician

(Instrumentation)

(Re-designated

as Technician

Gr. – II as on

15.01.86

1200-2040

950-1500

15.01.86Foreman Gr. I1640-

2900

01.05.90Foreman Gr.I

Foreman Gr. II

1800-

3105

1400-

2600

01.05.90Technician Gr.

I

Technician Gr.

II

1350-2200

1200-2040

2

01.01.96Foreman Gr. I

Foreman Gr. II

6000-

9500

5000-

8000

01.01.96Technician Gr.

I

Technician Gr.

II

4500-7000

4000-6000

4. One Anil Kapoor and others who were working at the Faridabad

Thermal Power Station in view of the discrepancies in the scale of pay of

Senior Technicians and Technicians vis-à-vis the scale of pay payable to the

holders of the same post at Panipat, filed a suit relying on or on the basis of

the doctrine of ‘equal pay for equal work’. Plaintiffs of the said suit had

joined their respective services prior to 1.01.1986. In the said suit, it was

averred:

“3.That the defendant No. 1&2 ever since the

date of appointment of plaintiffs in Thermal Power

House at Faridabad are giving them the following

pay scales:

(i)Plaintiffs Nos. 1 to 11 who are Senior

Technicians are getting pay scale: Rs.

450-760/-

(ii)Plaintiffs Nos. 12 to 16 who are

Technicians are getting pay scales: Rs.

400-700/-

The above scales of the plaintiffs were made

effective w.e.f. 1.4.1979.

4.That on the other hand the counter parts of

plaintiffs who are working as Senior Technicians

3

and Technicians at Thermal Power House, HSEB

Panipat were given the following initials pay

scales, made effective from 1.4.1979

a)Senior Technicians: Rs. 700-1250/-

b)Technicians :Rs. 600-1100/-”

One of the contentions raised in the said suit by the appellant – Board

was that the educational qualification prescribed for the said posts at Panipat

and Faridabad was different which having not been proved, the said suit was

decreed. An appeal preferred thereagainst was dismissed. Appellant filed a

Second Appeal before the High Court which was marked as RSA No. 800 of

1992. After the passing of the decree in Anil Kapoor’s suit, several other

suits claiming similar reliefs were filed.

5. Gulshan Lal and Others filed Civil Suit No. 180 of 1999 praying inter

alia for the following reliefs:

“(a)a decree of declaration in favour of plaintiffs

and against the defendants, declaring the plaintiffs

entitled to receive the said higher pay scales of Rs.

1400-2600 w.e.f. 24.10.1991 and of Rs. 5000-150-

8000/- w.e.f. 1.1.1996 along till actual payment, as

mentioned in para No. 2 above of the plaint on the

basis of principle of ‘equal pay for equal work’.

(b) a decree of mandatory injunction in favour

of plaintiffs and against the defendants, directing

the defendants to release/ pay to the plaintiffs the

said higher pay scales of Rs. 1400-2600 w.e.f.

4

24.10.1991 and of Rs. 5000-150-8000 w.e.f. 1.1.96

along with interest @ 18% p.a. from the date of

due till actual payment forthwith;

(c)Any other relief to which the plaintiffs are

found entitled to in the circumstances of the case

and in the eyes of law, may also be awarded to the

plaintiffs and against the defendants with costs of

suit;”

6. Kashmir Singh and Others also filed a suit which was marked as Civil

Suit No. 324 of 1993. Similar reliefs were prayed for in the said suit also.

In the said suits, the anomaly in the scale of pay of two thermal power

stations under the Board was pointed out.

7. Whereas Anil Kapoor was in the grade of Senior Technician, Gulshan

Lal and Kashmir Singh were in the Technician Grade I. The said suits were

decreed, subject to the decision of the aforementioned RSA No. 800 of 1992.

8. On or about 13.01.1986, for the purpose of implementing the staffing

pattern vis-à-vis recruitment and promotion policy for thermal power plants

of the Board, inter alia a decision was taken to re-designate the regular

technical posts in the thermal organization of Faridabad with effect from

15.01.1986 in the respective trades; the relevant entries thereof are as under:

5

Sr. No.Existing

Designation

Scale New

Designation

Scale

5. Special Foreman/

Inst. Mechanic

700-1250 Foreman –

Gr. I

700-1250

6. Foreman 700-1150 Foreman –

Gr. I

700-1150

10. Assistant Foreman

Welder

570-1020 F.M. Grade –

III

570-1020

14. Electrician,

Plumber-cum-

Fitter

450-760 Tech. Grade

– I

450-760

16. Fitter, Carpenter,

Tel. Mechanic,

Boiler Mech.

Turbine Mech.

Blacksmith,

Moulder, Masson,

Pattern Maker,

Turner, Assistant

Welder

400-700 Technician

Grade – II

400-700

9. Kashmir Singh and Others were redesignated from Assistant Foreman

Welder to Foreman Grade-III whereas Gulshan Lal and Others were

redesignated as Technician Grade II. Those who were in Item Nos. 14 and

16, as noticed hereinbefore, also filed a suit inter alia for grant of mandatory

injunction.

10. The note appended to the said order specifying re-designation is as

under:

6

“1.Due to change in designations as indicated

above, no financial benefits will be admissible to

any category of staff.”

11.So far as thermal plant at Panipat is concerned, similar office order

was issued on 17.01.1986, redesignating the relevant posts, which are as

under:

Sr. No.Existing

Designation

Scale New

Designation

Scale

3(iv) Sr. Technician700/1250 Foreman –

Gr. I

700/1250

7. Carpenter 400/700 Tech. Grade

– II (Car)

400/700

8. Fitter 400/700 Tech. Grade

– II

Plant

Attendant

Grade – II

400/700

12. Whereas at Faridabad, the post of Foreman was sub-divided in several

grades, viz., Foreman Grade – I, II and III, the post of technician was sub-

divided into two grades only, viz., Technician Grade – I and II, at Panipat,

the post of Technician was abolished, as would appear from the office order

dated 10.12.1987, the relevant portion whereof reads as under:

“1.The Board vide Office Order No.

2843/Cadre dated 22.5.85 and Office Order No.

7

2897 Cadre dated 27.8.85 etc. introduced “Staffing

Pattern” in respect of Thermal Power Stations at

Faridabad/ Panipat. Consequent upon the

introduction of this “Staffing Pattern” the names of

some of the posts have been re-designated and

some posts have been dropped. In order to keep

the record straight and avoid confusion, the Board

had decided that the posts mentioned in Annexure

‘A’ annexed with this order be deleted, posts as per

Annexure ‘B’ be added and posts as per Annexure

‘C’ be re-named. Accordingly, necessary deletion/

addition/ corrections may be made in Board’s

Office Order No. 384/Finance dated 19.8.87 and

Office Order No. 391/F dated 2.11.87, notifying

the revised pay scales for the employees in the

Board with effect from 1.1.1986.

2.The Board is further pleased to order that the

deletion of posts as shown in the aforesaid

Annexure ‘A’ shall take effect from 1.1.86 (date

on which the revised pay scales were introduced in

the Board) or from the date of Staffing Pattern was

adopted at Thermal Plants, whichever is later.”

Annexure ‘A’ appended thereto specified various types of posts in

respect whereof scale of pay was revised. We hereat are concerned with

Group – X, which reads as under:

“Sr. No.

of the

group

Name of the Post Pre-revised scaleRevised scale

5. Sr. Technician 700-1250 1600-2660

7. Electrical Winder 700-1250 1600-2660

8. Fitter Instructor 700-1250 1600-2660

9. Welder Instructor 700-1250 1600-2660

19. Control Room Operator700-1250 1600-2660”

8

13. With the aforementioned backdrop of events in mind, we may have a

look at the contentions raised by Gulshan Lal and Others in their suit which

was filed in 1999. They had been working as Technician Grade – II and not

as Senior Technician. They were appointed during the period 15.01.1986

and 30.11.1988. All of them were, thus, appointed after 1.01.1986. They

could not, thus, have claimed parity with Anil Kapoor. Their scales of pay

were also different.

They prayed for a decree for declaration for their entitlement to higher

pay scales as also grant of a decree for mandatory injunction.

A bare perusal of the averments made in the plaint would clearly go to

show that no foundational fact as regards basis of their entitlement was laid.

The entire claim proceeded on the basis that they were senior to Anil Kapoor

and Others.

14. So far as suit filed by Kashmir Singh and Others is concerned, we

may notice that, according to them, they had been working as Foreman

Grade – III. In the said suit, the following reliefs were prayed for:

9

“a)A decree of declaration in favour of

plaintiffs and against the defendants, declaring the

plaintiffs supervisory staff entitled to get and

receive from the defendants, more pay/ higher

grades, and arrears from the date of anomalies/

discrimination and from which the plaintiffs are

legally entitled, than that their junior/ subordinates,

the view of their length of service, more and higher

responsibilities, much more experience,

qualification and designations,

b)A decree of mandatory injunction as a

consequential relief in favour of plaintiffs and

against the defendants directing the defendants to

pay to the plaintiffs forthwith their higher grades

and arrears of such higher grade, pay scales from

the date of anomalies/ discrimination alongwith

applicable interest, if any, that of their juniors and

superiors and keep on paying the higher grades in

future continuously than that of their

subordinates.”

In both the suits, the basis for their claim was stated to be as under:

“3.That the plaintiffs have felt great humiliation

and embarrassment and disappointment when they

came to know, that the official working under

them in the capacity of Senior Technicians who

were and are juniors to the plaintiffs in rank and

job/ designations have been given more pay and

allowances in a higher grade than the plaintiffs.

The plaintiffs are supervisors whereas the

Technicians are working under the control and

supervision of the plaintiffs…”

10

15. Indisputably, in the case of Gulshan Lal and Others, both the writ

petition and suit were allowed subject to the decision of the High Court in

Anil Kapoor’s RSA No. 800 of 1992. The said second appeal was dismissed

by the High Court on 9.10.2001. A special leave petition filed thereagainst

had been dismissed. A review application filed has also been dismissed.

16. In Kashmir Singh’s case, the writ petition was allowed, stating:

“Mr. Arora states that the judgment, Annexure P-3

has attained finality as the SLP filed against the

said judgment has been dismissed on 30.1.2003.

He further states that RSA No. 281 of 2001 arising

out of the same matter has also been dismissed by

this Court on 4.2.2004. We accordingly, direct

that the petitioners be given the benefits as laid in

Annexure P-3 within a period of six months from

the date a certified copy of this order is received by

the respondents.”

17. A civil suit being RBT No. 324/93/98 was decreed on 20.09.1999

holding that the plaintiffs had been in service for a long time and had been

placed on a lower scale of pay than their counter-parts. Opining that it was

established that the plaintiffs had been doing the same nature of job which

eleven other co-employees mentioned in paragraph 4 of the plaint had been

doing and relying on or on the basis of the decision in Anil Kapoor’s case, it

was held:

11

“10.In rebuttal DW1 Sh. T.R. Diwakar

Superintendent admitted those seniority list Ex. P3

are correct. But he admitted that the grade of

Foreman – III is more than Technicians. He

further admitted that Anil Kapoor and etc. are

receiving more pay scales than the plaintiffs as per

the order of the court but RSA is pending in the

High Court. He further admitted that appointing

authority of the plaintiffs and on these 11 co-

employees is same and all these persons are

working under the same Board. The plaintiffs are

working under the same Board. The plaintiffs

have proved legal notice served by them through

their counsel as Ex. P2.”

The Appellate Court dismissed the appeal preferred by the appellant

holding:

“11.I have considered the above referred

authorities. The plaintiffs have neither pleaded nor

proved that the cadre of the plaintiffs and that of

these 11 persons who have been granted the scales

equivalent to that of senior technicians of Thermal

Power Plant Panipat are in the same cadre. It is

their case that they being senior in the same status

and rank cannot be paid less than their

subordinates. In fact it is a case on the basis of

discrimination and this aspect could effectively be

looked into by the Hon’ble High Court and by

Hon’ble Supreme Court under Article 226 and

Article 32 of the Constitution of India. Because it

is a violation of fundamental rights. However, in

the present case, if the appeal is allowed and the

suit is dismissed, then an anomaly may accrue that

the juniors may continue to get more pay than the

12

seniors in the Board. Thus, in these circumstances,

it cannot be said that the finding recorded by the

learned trial court is improper. The appeal as such

fails. However, it is ordered that the benefits

granted to the plaintiff as ordered by the trial court

would be subject to the decision of the appeal of

other 11 employees who have been granted the

scale as per direction of the Hon’ble High court. It

will be immaterial whether the Board files appeal

against this judgment or not, because the findings

in that appeal would be binding on the present

plaintiffs too. With this clarification the appeal

fails and I dismiss it with no order as to costs.

Lower court file be sent back and appeal file be

consigned to records.”

The High Court in the case of Gulshan Lal inter alia on the premise

that the respondents are similarly situated to Anil Kapoor held as under:

“We are not impressed by the arguments raised on

behalf of the Respondents that the Petitioners

cannot derive any benefit from judgment date

9.10.2001 rendered in RSA No.800 of 1992 and

CWP No. 1632 of 1999, in so much as from a

perusal of the Trial Court judgment passed in the

case of the Petitioners, the stand taken by the

Respondents was that the matter was sub-judice on

account of pendency of Anil Kapoor’s case. The

Respondents went to the extent of objecting to the

maintainability of the suit pleading that the matter

was sub-judice (on account of pendency of Anil

Kapoor’s case). It therefore follows that the

Respondents relied on the adjudication of Regular

Second Appeal No.800 of 1992 in the High Court

to controvert the plea taken by the Petitioners-

plaintiffs in the civil suit. It was on this count that

the Petitioners were not being granted the relief

and maintainability of the suit itself was being

questioned. While deciding Issue Nos. 1 and 2 i.e.

13

relevant issues, the Trial Court vide judgment

dated 17.11.2000 decided the issues in favour of

the plaintiff-Petitioners in this petition holding

them entitled to receive pay scale of Rs.1400-2600

with effect from 24.10.1991 and Rs. 5000-8000

with effect from 1.1.1996 subject to the decision of

RSA No.800 of 1992. Therefore, the arguments of

the Respondents in these regards have to be

rejected. It is not disputed that Judgment dated

17.11.2000 rendered in civil suit has attained

finality. Further, judgment dated 9.10.2001

rendered in RSA No.800 of 1992 titled Haryana

State Electricity Board & another’s versus Anil

Kapoor & others and CWP No. 1632 of 1999 titled

Anil Kapoor & others Versus Haryana Power

General corporation has also attained finality.

Once the appeal filed on behalf of the Respondents

in the Supreme Court has been dismissed, the lis

stands finally settled. We therefore can safely rely

on the findings recorded in the judgment dated

9.10.2001 appended with the writ petition as

Annexure P-2. It is not in dispute that Anil

Kapoor & others were on equal pedestal as the

Petitioners. The only issue sought to be raised by

the Respondents is that the qualifications in the

Panipat Thermal Power Station were different

from those in the Faridabad Thermal Power

Station.”

The Court noticed the directions issued in Anil Kapoor’s case, which

are as under:

“Prior to 1.1.1986, the units were independent but

with effect from 1.1.1986 and on account of the

circular dated 19.8.1987, all the thermal plants in

Haryana have been brought under one employer.

The recruitment and promotion policies are now

governed by the same set or rules whether the

employees are at Faridabad or at Panipat. In these

14

circumstances, I am of the considered opinion that

the plaintiffs are entitled to the same pay scales as

were given to their counter parts working at

Panipat but in the cadre of senior technicians and

technicians, both the courts have rightly held that

the principle of equal pay for equal work is

applicable in the present case and the plaintiffs

could not be discriminated.

Resultantly, I hold that the plaintiffs Nos. 1 to 11

are entitled to the pay scale of Rs.700-1250

w.e.f.01.04.1979. Thus they are entitled to the

grade of Rs.1600-2600 as senior technician

w.e.f.01.01.1986. Similarly, plaintiff Nos. 12 to

16 are entitled to the pay scale of Rs.600-1100

with effect from 01.04.1979 and further they are

entitled to the pay scale of Rs.1400-2600

w.e.f.01.01.1986 as technician.

Further, I give the declaration of the plaintiffs that

all the Petitioners are entitled to the grade of

Rs.1640-2900 w.e.f.15.01.1986 and the grade of

Rs.1800-3105 w.e.f. 01.05.1990. They shall also

be entitled to the standard scale after 10 years

regular service of Rs.2100-3315 as per the

recommendation of the 4

th

Pay Commission.

Further they shall be entitled to the grade of

Rs.6500-9900 w.e.f.1

st

January, 1996 as per the

recommendation of the 5

th

Pay Commission.

I further give declaration that all the Petitioners

shall be designated as Foreman Grade-I w.e.f.

15-01-1986 so that they may be able to claim the

grade which I have awarded to them.

The net result is that Appeal No.800 of 1992 falls

and the same is hereby dismissed, while C.W.P.

No. 1632 of 1999 is hereby allowed. The parties

shall bear their own costs.”

Opining that they are similarly situated to Anil Kapoor and others, it

was held:

15

“In our considered opinion, the afore-reproduced

portion of the judgment rendered in Anil Kapoor’s

case (supra) would be applicable to the case of the

Petitioners. The department cannot be allowed to

treat two sets of equal employees unequally.

Further, sequence of facts of the petition show that

in the civil suit instituted by the Petitioners, the

defence taken was that the issues are common and

relevant as in Anil Kapoor’s case, therefore,

neither the department had taken any decision nor

the suit would be maintainable. The department

cannot be allowed to reprobate at subsequent stage

when faced with the contentions raised in the writ

petition, to contend that Anil Kapoor’s case being

a different litigation would not be applicable to the

present case and the relief allowed to the

employees equally situated involved in Anil

Kapoor’s case cannot be allowed to the Petitioners

in the present petitions. Some sense of

responsibility is expected of the instrumentalities

of the state and they cannot be allowed to behave

like an ordinary litigant taking technical objections

particularly when fundamental principles like

“equal pay for equal work” are involved.”

It was furthermore held:

“The Respondents have not been able to show

from any material that the employees in Anil

Kapoor’s case were differently situated than the

Petitioners in this writ petition. It thus follows that

the employees in Anil Kapoor’s case are placed at

equal pedestal with the Petitioners in this writ

petition and the law laid down in Anil Kapoor’s

case has to be applied and followed by the

Respondents.”

However, the arrears were restricted to three years and two months.

16

18. Whereas in Kashmir Singh’s case, the writ petition was allowed, it

appears that the second appeal filed by the appellant was dismissed on the

ground of their non-appearance before the High Court. The writ petition of

the respondents was allowed on the premise that the judgment passed in

CWP No. 7620 of 2002 (Anil Kapoor’s case) had attained finality as the

Special Leave Petition preferred thereagainst had been dismissed. It was

furthermore brought to the notice of the court that RSA No. 281 of 2001 was

also dismissed on 4.02.2004.”

19. We may place on record that on an application filed by the appellant,

RSA No. 281 of 2001 was restored. By an order dated 23.04.2004, a review

application was filed for review of the order dated 19.02.2004 on

15.07.2004, which was marked as Review Application No. 286 of 2004.

The aforementioned RSA No. 281 of 2001 was directed to be admitted for

regular hearing by an order dated 29.09.2004. The review application was

dismissed by an order dated 1.10.2004.

20. Appellant filed special leave petition thereagainst, which was marked

as SLP (C) No. 11980 of 2004. By reason of an order dated 20.01.2005, this

Court dismissed the said application, stating:

17

“There is no proper explanation for the inordinate

delay of 196 days in filing the Special Leave

Petition against the order dated 19.2.2004.

Application for condition of delay is dismissed.

Accordingly, the Special Leave Petition is

dismissed.

The Review application has been rightly dismissed

because no ground for review had been made out.

We, therefore, see no reason to interfere. The

Special Leave Petition against the order dated

1.10.2004 is also dismissed.”

21. By an order dated 8.05.2007, the said RSA No. 281 of 2001 was

dismissed opining that the said appeal being RSA No. 800 of 1992 was

pending which having been dismissed and affirmed by this Court, there was

no ground to interfere with the concurrent findings of the courts below.

22. Mr. P.S. Patwalia, learned senior counsel appearing on behalf of the

appellant, would submit:

(i)The suits and writ petitions in the instant cases have been decreed/

allowed by the civil courts/ High Court on a wholly wrong

premise, viz., that the plaintiffs/writ petitioners were similarly

situated to Anil Kapoor and others.

18

(ii)The post of ‘Technician’ having been abolished at Panipat Thermal

Power Station and a new post of Foreman having been created at

Faridabad Thermal Power Station and moreover in view of the fact

that the respondents having been appointed after 1.01.1986 could

not be said to be similarly situated to Anil Kapoor and others.

(iii)The judgments and orders passed in the suit both by the civil courts

as also the High Court have a cascading effect, viz., those who had

been working on a post of Foreman Grade – III at Faridabad and

Technician Grade – II at Panipat would also claim their

designation as Foreman although they could not have been

promoted to the said post in regular course.

(iv)For the purpose of appointment to the post of Foreman Grade – I,

the qualifications and experience being different, by following a

wrong order of redesignating Anil Kapoor and Others as Foreman,

others also could not have given the same benefit particularly in

view of the redesignation of the posts vis-à-vis the revision in the

scale of pay.

(v)It is wholly impermissible in law to place the respondents in the

supervisory category and that too for all intent and purport by

granting them designation and scale of pay which is four grades

above the posts which the respondents had been holding.

19

(vi)Although Article 14 of the Constitution of India forbids inequality,

but, it is well-settled that equality cannot be claimed in illegality;

but, as in this case, reliefs granted in the suit as also the writ

petitions proceeded wholly on a wrong premise, viz., equivalence

in the scale of pay vis-à-vis the persons similarly situated in both

the thermal power stations, and, thus, the impugned judgment

cannot be sustained.

(vii)The High Court has exceeded its jurisdiction in passing the

impugned judgments insofar as not only higher scales of pay had

been directed to be granted but also higher designations have been

directed to be given which is wholly illegal.

(viii)Appellant although suffered orders of this Court in other writ

petitions but keeping in view the fact that the correct factual

aspects as also the circular letters containing providing for re-

designation in the revised scale of pay could not be brought to its

notice, the same should not be held to have any binding effect on

the appellants in all subsequent litigations.

23. Mr. Salman Khurshid, learned counsel appearing on behalf of the

respondents, on the other hand, has placed before us a composite seniority

list which is effective from 29.02.1988 to contend that whereas Anil Kapoor

20

was placed therein at Serial No. 72, some of the respondents herein were

placed at Serial Nos. 5, 7, 9, 10, 11, 12, etc. and, thus, there is absolutely no

reason as to why the respondents herein shall be discriminated against vis-à-

vis the said Anil Kapoor.

It was furthermore submitted that all the respondents having requisite

qualifications and/ or sufficient experience to hold a higher post, this Court

should not interfere with the impugned judgment. It was urged that there

does not exist any anomaly, as has been submitted on behalf of the

appellants, with regard to pay scales so far as the Senior Technicians and

Technicians of the Faridabad Plant are concerned vis-à-vis the Panipat Plant.

In any view of the matter as either before the learned Trial Judge as

also before the High Court no grievance had been raised to the effect that the

respondents had not been holding sufficient qualification or experience nor

having raised any other contention which have been raised before us for the

first time, this Court may not permit the appellants to do the same.

24. The Board by an office order dated 27.05.1985 issued the following

revised recruitment and promotion policy for the employees working in the

Thermal Power Projects of the Board:

21

“*** *** ***

8.Foreman Grade - I

(Scale Rs. 700/1250, SG 750/1450 for 20%

posts)

i)10% shall be filled up by direct

recruitment by Matriculates with ITI two

years course with eight years experience

or 8

th

Class with ITI two years Course

and eleven years experience.

ii)90% shall be filled up by promotion from

Foreman Gr-II with four years

experience/ service as such.”

99% of the respondents, we are informed, do not fulfill these basic/

essential qualifications.

25. So far as the promotion to the posts of Foreman Grade II and III is

concerned, the experience in the next below post was a requisite criterion but

as would appear from the discussions made hereinafter none of the

respondents had the experience in the next below post.

For the purpose of proper appreciation of the question involved, we

may notice the qualifications held by the respondents.

In Civil Appeals arising out of SLP (C) No. 15718 of 2006 (Gulshan

Lal’s case) and SLP (C) No. 15758 of 2007 (Kashmir Singh’s case), some of

22

the respondents are not even matriculate. For example, qualification of

some respondents is only 3

rd

class, 6

th

class etc..

In Civil Appeal arising out of SLP (C) No. 20792 of 2006, most of the

respondents are not having even the qualification of matric. Qualification of

one of the respondents, viz., Chaman Lal is only 2

nd

Class. Similarly in

other appeals also, some respondents are not even matriculates. Some have

passed only 4

th

standard, 5

th

standard and 6

th

standard examinations.

26. The question, which, therefore, arises for consideration is as to

whether such unusual two/three/four promotions in the hierarchy is

permissible in law.

Evidently, it is not.

27.Appellant is a State within the meaning of Article 12 of the

Constitution of India. For holding a public office, an employee must possess

the requisite prescribed qualification, in absence whereof the additional

reliefs could not have been granted to them relying on or on the basis of the

judgment passed in the earlier cases. Conditions of service of the employees

of the appellants are governed by the statutory rules. Violation thereof is

impermissible in law. Whereas the appellants are bound by the doctrine of

23

equality as envisaged under Article 14 of the Constitution of India, it is also

well-settled that unequals cannot be treated as equals. Herein, equality

doctrine has been invoked only on the basis of relief granted in the case of

Anil Kapoor. In Anil Kapoor’s case, a writ petition was also filed for the

purpose of grant of designation. The same has rightly or wrongly been

allowed. That would not mean that equality can be claimed on the basis

thereof which would lead to a wholly anomalous situation. Decree granted

by a competent court of law is no doubt binding on the employer. But, when

in a subsequent litigation the absurd result emanating from the cascading

effect thereof becomes apparent before another court and it is found that the

said judgment is illegal, it is well-settled, that by application of Article 14 of

the Constitution of India alone, similar relief should not be granted.

Equality clause carries with it a positive effect. It signifies treating persons

equally who are situated similarly. Those who had been occupying the

position of Foreman Grade – I and/ or Foreman Grade – II and other

employees who were far below them either for the purpose of seniority or

otherwise could not have been treated equally. The cascading effect thereof

would be that for all intent and purport those who are in the joint seniority

list being above Anil Kapoor and others in the seniority list would derive the

same benefit irrespective of the fact as to whether they are qualified to hold

the post of Foreman Grade – I and/ or otherwise gained sufficient experience

24

therefor for promotion to that post.

28. Submission of Mr. Salman Khurshid that the right to obtain same

remuneration would carry with it the designation also is not correct.

Promotion to a higher post cannot be claimed as a matter of right. Before a

person claims promotion, subject of course to just exceptions, the prevailing

rules must be followed. If the employee concerned while working in a

particular grade does not acquire experience of working therein, he cannot

be promoted to the next higher grade although experience in the immediately

below post forms part of an essential qualification.

A person, thus, who is ineligible to hold the post cannot be directed to

be promoted thereto only on the ground of so called equality doctrine or

otherwise.

29. We have noticed hereinbefore that even in Kashmir Singh’s case, the

High Court committed a serious illegality in treating the Senior Technicians

and Technicians together. Similar reliefs were granted to both the categories

of employees which was impermissible.

25

30. The basis on which the other judgments were passed, viz., the

decision of the High Court in the second appeal is subject matter of one of

the SLPs. The Trial Judge following the case of Anil Kapoor and Kashmir

Singh had evidently not only directed grant of scale of pay but also an

additional relief viz. designation. It was also, in our opinion, wholly

impermissible in law.

31. It is one thing to say that having regard to the provisions contained in

Article 39(d) of the Constitution of India read with Article 14 thereof, a

court invokes the doctrine of equal pay for equal work but the same would

not mean that a person is not only granted the same relief but also granted a

higher status to which he was not otherwise entitled to.

32. In these appeals, the legality or otherwise of the judgment of the High

Court passed in Regular Second Appeal No. 281 of 2001 itself is in

question. We have noticed hereinbefore that the High Court proceeded on

the basis that the second appeal had been dismissed although the same was

merely dismissed for default and which has since been restored. Merit of the

matter was considered at a later stage. A decision rendered on merit by the

High Court, being open to question, in our opinion, this Court is entitled to

go thereinto.

26

It is a trite law that the doctrine of equal pay for equal work cannot be

applied automatically. Application of the said doctrine involves several

factors.

33. In Deb Narayan Shyam v. State of W.B. [(2005) 2 SCC 286], this

Court held:

“A large number of decisions have been cited

before us with regard to the principle of “equal pay

for equal work” by both sides. We need not deal

with the said decisions to overburden this

judgment. Suffice it to say that the principle is

settled that if the two categories of posts perform

the same duties and functions and carry the same

qualification, then there should not be any

distinction in pay scale between the two categories

of posts similarly situated. But when they are

different and perform different duties and

qualifications for recruitment being different, then

they cannot be said to be equated so as to qualify

for equal pay for equal work.”

{See also Union of India v. Mahajabeen Akhtar [(2008) 1 SCC

368]}

34. Same or similar nature of work, by itself, does not entitle an employee

to invoke the doctrine of equal pay for equal work. Qualification,

experience and other factors would be relevant for the said purpose.

27

35. From the averments made in the plaint, it is evident that the premise

on which they could claim a higher designation had not been specified.

Respondents herein in their respective plaints admit that they have been

working on a much lower grade than the post of Senior Technician or

Technician.

36. Furthermore, neither the learned Trial Judges nor the High Court

considered the effect of abolition of certain posts as also re-designation

thereof. It is furthermore evident that Gulshan Lal and others having been

working in Technician Grade – II could not have claimed parity with those

who had been occupying the post of Senior Technician.

37. It may be true that this Court has dismissed the special leave petition

on the ground of delay. The same, however, does not preclude us from

considering the matter on merit. We would therefor assume that even no

appeal was filed. Even in such a situation, this Court in State of

Maharashtra v. Digambar [(1995) 4 SCC 683] considered the following

contention:

“9. Shri Ashok Desai, in his reply to the

submissions made on behalf of the respondent and

others who had obtained judgments in their favour

from the High Court on the basis of the judgment

28

impugned in this appeal, did not dispute the

position that certain judgments of the High Court

in similar matters had not been appealed against by

the State in this Court. But, according to him such

a thing had happened obviously under an

impression that they were stray cases and not fit

enough to be appealed against before this Court,

having regard to smallness of the amounts

involved. When the High Court allowed certain

other writ petitions based on its earlier judgments

in similar matters, the State, according to him,

inevitably filed SLPs in this Court in respect of

latter judgments, but, unfortunately those SLPs had

come to be dismissed. But, when the High Court

allowed the writ petition by the judgment under

appeal and when that judgment was followed in

allowing other 191 writ petitions and when

innumerable persons were trying to take advantage

of the said judgments of the High Court to file

further writ petitions which was estimated to

involve an expenditure of about 400 crores of

rupees for the State of Maharashtra, there was no

escape from filing the special leave petition out of

which the present appeal has arisen and other

SLP/SLPs to wriggle out of the unanticipated

situation. It was his submission that in the peculiar

facts and circumstances adverted to by him, the

earlier non-questioning of certain judgments of the

High Court in this Court and the dismissal of SLPs

in limine by a Division Bench of this Court filed

against a few judgments of the High Court, cannot

be a bar against the State filing this appeal against

the judgment concerned seeking a decision of this

Court on merits, when the judgment impugned was

wholly unsustainable and called for interference so

that the State Government may be saved from the

calamitous situation which it had to face otherwise

on account of 191 judgments rendered by the High

Court by following it and when innumerable

persons were waiting to take advantage of the

judgment by filing fresh writ petitions in the High

29

Court.”

The said contention was negatived, holding:

“Therefore, the circumstance of the non-filing of

the appeals by the State in some similar matters or

the rejection of some SLPs in limine by this Court

in some other similar matters by itself, in our view,

cannot be held as a bar against the State in filing

an SLP or SLPs in other similar matter/s where it

is considered on behalf of the State that non-filing

of such SLP or SLPs and pursuing them is likely to

seriously jeopardise the interest of the State or

public interest.

It was observed :

“Therefore, the fact that the State has failed to file

appeals in similar matters or this Court has rejected

SLPs in similar matters, cannot be held to be a

total bar or a fetter for this Court to entertain

appeals under Article 136 of the Constitution

against similar judgments of the High Court where

need to entertain such appeals is found necessary

to meet the ends of justice, in that, the ambit of

power invested in this Court under Article 136

allows its exercise, wherever and whenever, justice

of the matter demands it for redressal of manifest

injustice.”

38. Yet again in Coromandel Fertilizers Ltd. v. Union of India and

Others [1984 (Supp) SCC 457], it was held:

30

“13. Mr Setalvad made a grievance that the

authorities concerned had allowed the benefit of

the notification under similar circumstances to a

rival company. If the grievance of the appellant is

true, the appellant may no doubt have reasons to

feel sore about it. We have, however, to point out

that the grievance of the appellant even if it is well

founded, does not entitle the appellant to claim the

benefit of the notification. A wrong decision in

favour of any particular party does not entitle any

other party to claim the benefit on the basis of the

wrong decision. We are, therefore, clearly of the

opinion that the fertilizer manufactured by the

appellant in respect of which claim for exemption

under the notification is made is not a mixed

fertilizer within the meaning and scope of the

notification and we have no hesitation in rejecting

the case of the appellant, expressing our agreement

with the reasons stated in the judgment of the High

Court.”

39. We are not oblivious of the fact that anomalous situation would be

created in the sense that juniors of the respondents may be getting a higher

pay but things as they stand cannot be allowed to continue. It has a

cascading effect, viz., those employees who are junior to the respondents

and/ or even Anil Kapoor and others would be entitled to claim parity in the

scale of pay as also in designation.

40. It is now a well-settled principle of law that nobody should suffer

owing to the mistake on the part of the court in view of the maxim actus

curiae neminem gravabit.

31

41.We, therefore, are of the opinion that the impugned judgments cannot

be sustained which are set aside accordingly. The appeals are allowed.

However, in the facts and circumstances, there shall be no order as to costs.

………………………….J.

[S.B. Sinha]

..…………………………J.

[Dr. Mukundakam Sharma]

New Delhi;

May 06, 2009

32