Page 1 of 36

HIGH COURT OF TRIPURA

AGARTALA

W.A. No.74 of 2025

1. Sri Zonunfela Rawihte, S/O. R. Sangkhuma, R/O. Sabual, Jampui Hill,

P.O.- Vanghmun, District-North Tripura, PIN-799269, Age-41 years.

2. Sri Jitendra Tripura, S/O. Reban Tripura, R/O. Chittamara, Belonia, P.O.-

Chittamara, District-South Tripura, PIN-799155, Age-32 years.

3. Sri Abhijit Roy, S/O. Sri Manoranjan Roy, R/O. Village-Kamalpur,

Noagaon Road, Near Noagaon High School, P.O.-Noagaon, District-Dhalai,

Tripura, PIN-799285, Age-40 years.

4. Sri Badal Pal, S/O. Khagendra Chandra Pal, R/O. Near Kupilong Bazar,

Village-West Kupilong, P.S.-Killa, P.O.-Kupilong Bazar, District-Gomati

Tripura, PIN-799114, Age-51 years.

……… Appellant(s).

V E R S U S

1. The State of Tripura, to be represented by the Principal Secretary, School

Education Department, Government of Tripura, New Secretariat Complex,

New Capital Complex, P.O.-Kunjaban, P.S.-New Capital Complex, Agartala,

District-West Tripura, Pin-799006.

2. The Director of Secondary Education, Govt. of Tripura, School Education

Department, Government of Tripura, P.O.-Agartala, P.S.-West Agartala,

District-West Tripura, Pin-799001.

3. The Director of Elementary Education, Govt. of Tripura, School Education

Department, P.O.-Agartala, P.S.-West Agartala, District-West Tripura, Pin-

799001.

4. The Principal Secretary, Finance Department, Government of Tripura, P.O.-

Kunjaban, P.S.-New Capital Complex, District-West Tripura, Pin-799006.

5. The Principal Secretary, General Administration (P&T) Department,

Government of Tripura, P.O.-Kunjaban, P.S.-New Capital Complex, District-

West Tripura, Pin-799006.

………Respondent(s).

W.A. No.75 of 2025

1. Sri Biplab Saha, S/O. Sri Phani Bhushan Saha, R/O. Vill. North Charilam,

P.O.-North Charilam, P.S.-Bishalgarh, District-Sepahijala Tripura, Pin-

799103, Age-37 years.

2. Sri Kishore Shil, S/O. Sri Anil Chandra Shil, R/O.Vill. and P.O.-

Anandanagar, P.S.-Srinagar, District-West Tripura, Pin-799004, Age-38

years.

3. Sri Maxwell Oliver Debnath, S/O. Sri Alindra Debnath, R/O. Near Dasda

Bazar, Laxmi Pur, P.O.-Dasda, P.S.-Kanchanpur, District-North Tripura, Pin-

799271, Age-30 years.

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4. Sri Amal Das, S/O. Sri Amarendra Das, R/O. Brajendra Nagar, P.O.-

Brajendranagar, Dharmanagar, P.S.-Kadamtala, District-North Tripura, Pin-

799261, Age-34 years.

5. Sri Swapan Sinha, S/O. Sri Labanya Sinha, R/O. Kherengjuri, P.O.-

Kherengjuri, Dharmanagar, P.S.-Churaibari, District-North Tripura, Pin-

799262, Age-34 years.

6. Sri Pintu Das, S/O. Sri Falindra Das, R/O. Uttar Deuchara, near water

pump, P.O.-Deochara, Dharmanagar, P.S.-Panisagar, District-North Tripura,

Pin-799260, Age-37 years.

7. Sri Prasenjit Chakma, S/O. Sri Surdas Chakma, R/O. Korbook, Bhanupara,

P.O.-Jatan Bari, P.S.-Natunbazar, District-Gomti Tripura, Pin-799104, Age-33

years.

8. Sri Subal Chanda, S/O. Sri Badal Chanda, R/O. Dasda Laxmipur, P.O.-

Dasda, P.S.-Kanchanpur, District-North Tripura, Pin-799271, Age-37 years.

9. Sri Kamal Chowdhury, S/O. Sri Jatindra Chowdhury, Vill and P.O.-

Karaichara, P.S.-Pecharthal, District-Unokoti Tripura, Pin-799263, Age-37

years.

10. Sri Rajendra Deb, S/O. Lt. Ranjan Deb, R/O. South Nayapara,

Dharmanagar, P.O.-Dharmanagar, P.S.-Dharmanagar, District-North Tripura,

Pin-799250, Age-37 years.

11. Sri Bhaskar Bhowmik, S/O. Sri Bhabatosh Bhowmik, R/O. 92 College

Road, Ward-7 near RCC Bridge, P.O. & P.S.-Dharmanagar, District-North

Tripura, Pin-799250, Age-38 years.

……… Appellant(s).

V E R S U S

1. The State of Tripura, to be represented by the Principal Secretary, School

Education Department, Government of Tripura, New Secretariat Complex,

New Capital Complex, P.O.-Kunjaban, P.S.-New Capital Complex, Agartala,

District-West Tripura, Pin-799006.

2. The Director of Secondary Education, Govt. of Tripura, School Education

Department, Government of Tripura, P.O.-Agartala, P.S.-West Agartala,

District-West Tripura, Pin-799001.

3. The Director of Elementary Education, Govt. of Tripura, School Education

Department, P.O.-Agartala, P.S.-West Agartala, District-West Tripura, Pin-

799001.

4. The Principal Secretary, Finance Department, Government of Tripura, P.O.-

Kunjaban, P.S.-New Capital Complex, District-West Tripura, Pin-799006.

5. The Principal Secretary, General Administration (P&T) Department,

Government of Tripura, P.O.-Kunjaban, P.S.-New Capital Complex, District-

West Tripura, Pin-799006.

………Respondent(s).

For Appellant(s) : Mr. Purusuttam Roy Barman, Sr. Advocate,

Mr. Samarjit Bhattacharjee, Advocate,

Mr. Kawsik Nath, Advocate,

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Mr. Dipjyoti Paul, Advocate.

For Respondent(s) : Mr. S.M. Chakraborty, Advocate General,

Mr. Mangal Debbarma, Addl. G.A.,

Ms. Pinki Chakraborty, Advocate.

HON’BLE THE CHIEF JUSTICE MR. M.S. RAMACHANDRA RAO

HON’BLE MR. JUSTICE BISWAJIT PALIT

CAV reserved on : 15.12.2025.

Judgment delivered on : 08.01.2026.

Whether fit for reporting : YES.

COMMON JUDGMENT & ORDER

(M.S. Ramachandra Rao, C.J.)

1) Heard Mr. Purusuttam Roy Barman, learned senior counsel

assisted by Mr. Samarjit Bhattacharjee, counsel appearing for the appellants,

and Mr. S.M. Chakraborty, learned Advocate General assisted by Mr. Mangal

Debbarma, Addl. Government Advocate and Ms. Pinki Chakraborty, counsel

appearing for the respondents-State.

2) These two Writ Appeals arise out of a common judgment

dt.17.1.2025 of the learned Single Judge in W.P.(C) No.968 of 2022 and

W.P.(C) No.68 of 2022.

3) The Teachers Recruitment Board, Tripura, which is under the

Education (School) Department of the Govt. of Tripura ( respondent no.1) had

issued Advertisements dt.27.5.2017 and dt.17.11.2017 for filling up

‘permanent’ posts of Post Graduate Teachers (for Class XI-XII) and

Graduate teachers (for Class IX-X) in various subjects prescribing eligible

qualifications through a process of selection.

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4) The advertisements indicated that they would be paid only a

‘fixed pay’ of 75% of basic pay level-100 of the Tripura State pay matrix.

5) The appellants were found eligible for selection by the Teachers

Recruitment Board, Tripura as they possessed the prescribed qualifications

and were issued appointment letters as Graduate and Post graduate teachers

respectively in 2017-18. Separate notifications were issued by the Board

mentioning the persons selected as against each subject.

6) Curiously all the appointment letters stated that the appointment

is purely on ‘temporary’ basis for 1 year and will not confer any title to

continuation for further period/permanent appointment, that appointment can

be terminated at any time by a month’s notice given by either side, and the

appointing authority can do so without assigning any reason. They also

mentioned that the appointees will get only fixed monthly pay.

7) All the appellants accepted appointment on the above terms and

joined the service of the respondents.

The contentions of appellants

8) Appellants contend inter alia that:

(i) The posts against which they were appointed were sanctioned by

the Finance Department of the Government of Tripura ( Respondent no.4) and

carry a regular pay scale, but they have been appointed on fixed pay basis @

75% of the minimum of pay scale for the post of Post graduate teacher and

Graduate teacher;

(ii) Vide Memorandum dt.15.12.2001, the State of Tripura had

introduced the system of recruitment of Group C and Group D staff on fixed

pay basis by keeping in abeyance the regular Pay Scale for a certain period,

Page 5 of 36

but those employees recruited through the Tripura Public Service Commission

were given regular pay scale from the date of appointment;

(iii) A Memorandum dt.16.10.2007 was issued by the State of Tripura

stating that such employees who were recruited on fixed pay basis by keeping

regular pay scale in abeyance will be provided the regular pay scale on

completion of 5 years of service;

(iv) Prior to 2001, there was no such decision of the State

Government to appoint Group-C and Group D employees on fixed pay basis;

(v) Appellants had been appointed after formal creation of posts

through an open competitive selection process and their appointment cannot

be termed illegal or irregular. So the regular pay scale attached to the posts

held by the appellants cannot be denied to them;

(vi) The Memorandum dt.16.10.2007 which directed that Group C

and group D employees are kept on fixed pay for 5 years is arbitrary and

violative of right of appellants to get equal pay for equal work, amounts to

exploitation of Group C and Group D employees and is also an unfair

employment policy because when they are appointed against regular posts

after a process of selection, they cannot be paid fixed pay;

(vii) The Memorandum dt.16.10.2007 is restricting the pay prescribed

in Recruitment Rules framed under proviso to Art.309 of the Constitution of

India and the latter have to prevail over the said Memorandum;

(viii) The appellants are discharging the same duty during the first 5

years of their service as other Graduate and Post graduate teachers who are on

regular pay scale, but despite rendering equal duty in connection with the

same post and having same qualification for the post concerned, they have

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been kept on fixed pay. This violates the ‘right to equal pay for equal work’

enshrined in Art.14 and 16 of the Constitution of India.

(ix) The system of appointing on ‘fixed’ pay has been adopted only

for Group-C and D posts and not for Group A and B posts, who are getting

regular pay scales from date of initial appointment itself. Thus discrimination

is being shown against Group C and D employees vis-à-vis Group A and B

employees.

(x) The intent behind the policy to appoint only the Group C and D

employees, who are lowest in the hierarchy of employees, on fixed pay is to

deny fair and legitimate salary to them and amounts to their exploitation;

(xi) Also in Home Department, employees have been kept out of the

policy contained in the Memorandum dt.6.10.2007 and Group C and Group D

employees in the said department are getting regular scale of pay.

(xii) The State has a duty, while formulating policies, to minimize the

inequalities of income and eliminate inequalities in status, facilities and

opportunities, and so both the policies contained in Memorandum

dt.15.12.2001 and in Memorandum dt.16.10.2007 are liable to be struck down.

9) Appellants had got issued two legal notices – one dt.30.11.2021

and another dt.30.11.2021 seeking regular pay from the date of initial

appointment, but this was rejected on 8.12.2021 by the Director of Secondary

Education, Govt. of Tripura ( respondent no.2).

10) The appellants therefore prayed for:

(a) quashing the Memorandum dt.15.12.2001 and Memorandum

dt.16.10.2007 issued by Secretary, General Administration Department, Govt.

of Tripura (respondent no.5); and

Page 7 of 36

(b) for a direction to the respondents to allow regular pay scale to the

appellants from the date of their initial appointment along with all service

benefits including arrears of financial benefits.

The stand of the respondents

11) The respondents filed counter affidavit contending inter alia :

(i) The appellants had accepted their appointment as Post graduate

and Graduate teachers on fixed pay basis without raising any questions;

(ii) The Memorandum dt.15.12.2001 had been issued by the General

Administration Department of the State of Tripura with the approval of the

Council of Ministers;

(iii) State services falls under Entry 41 of List II of Seventh Schedule

to the Constitution of India and legislature has plenary power including power

of delegation; and the proviso to Art.309 empowers the Council of Ministers

to frame a policy on service matters of State Government employees; and in

absence of rules, the State Government is free to issue administrative

instructions in relation to recruitment and other conditions of service because

any field not covered by Rules framed under the proviso to Art.309 can be

covered by executive instructions;

(iv) The Recruitment Rules indicate the extent of the scale of pay and

not the formula for determination of pay or the guarantee for grant of a regular

pay scale;

(v) The Memorandum dt.15.12.2001 and the Memorandum

dt.16.10.2007 together speak of the formula for the determination of pay;

Page 8 of 36

(vi) These executive instructions do not interfere with the pay scale

but settle down the formula for determination of pay, and so the subjects of

the two are different and there is no cause to equate the same;

(vii) The appointment orders issued to each of the appellants

unambiguously mention the formula for determination of pay on joining the

post of Post Graduate Teacher/Graduate Teacher and state that they would get

75% of the minimum basic pay of the appropriate pay matrix level and so the

appellants are attempting to create a cloud in the mind of this Court;

(viii) The policy decision to allow candidates serving on fixed pay

basis with benefit of regular pay scale on completion of 5 years has been

finalised after due discussion in the Legislature during the budget declaration

of 2006-07 and so does not suffer from any infirmity;

(ix) Appellants cannot compare themselves with Group C and group

D employees of other departments such as the Home Department as

recruitment rules applicable are different and there is no violation of Art.14 or

Art.16 of the Constitution of India.

The judgment of the learned Single Judge

12) In the impugned judgment, the learned Single Judge held that the

appellants had participated in the selection process conducted by the Tripura

Teacher Recruitment Board having full knowledge that one of the terms and

conditions of service is that fixed pay will be paid to the appointees; that the

offer of appointment also mentioned that the appointment offered was of a

purely temporary post on fixed pay basis; they knew that their services would

be regularised after they complete 5 years of service on fixed basis; after they

got appointed they had no objection to fixed pay; and after a long period of

Page 9 of 36

time, they are contending that they should get regular pay scale and that their

services would be reckoned from their initial appointment.

13) He rejected the plea of discrimination raised by appellants with

those appointed through the Tripura Public Service Commission citing State

of West Bengal v. W.B.Minimum Wages Inspectors Association

1

, State of

Bihar v. Bihar Secondary Teachers Struggle Committee, Munger & Others

2

,

S.C.Chandra . Jharkhand

3

, Asif Hameed v. State of J & K

4

and held that

grant of pay scales is a purely executive function and the Court should not

interfere with the same and must exercise judicial restraint.

14) He observed that the State Government had taken a policy

decision to the effect that the unemployed youth are to be appointed in

different departments across the State and to fulfil that object, it had taken

initiative for the appointment of such unemployed youth on fixed pay basis.

15) He held that the financial stringency of the State Government in

creating employment refers to the fiscal constraints or limitations that the

Government faces while allocating resources for employment generation

programmes; and that this concept involves managing financial resources

carefully due to budget deficits, low revenue generation, or competing

demands for Government spending. When the State Governments experience

financial stringency, their ability to invest in infrastructure projects, support

industries, or fund to the recruitment of employees in Government Sector or

Public Sector, may be limited.

1

(2010) 5 SCC 225

2

(2019) 18 SCC 301

3

(2007) 8 SCC 279,

4

1989 Supp (2) SCC 364

Page 10 of 36

16) According to him, the fixed pay policy of the State to recruit a

large number of unemployed youth typically refers to a structured wage

system implemented by the State to ensure that job creation efforts are both

effective and sustainable; and this type of policy establishes a pre-determined,

stable salary for Government and Public sector employment programmes

aimed at absorbing large numbers of unemployed youth into work force.

17) He also held that the Government offered such fixed pay with the

option for renewal depending on funding availability after a considerable

period, and a fixed pay policy to recruit unemployed youth can be a

transformative initiative, providing both immediate employment and pathways

for skill building.

18) He held that Courts do not substitute their opinion in the decision

of a State Government with regard to policy matters and the Court should

refuse to sit as appellate authority or super legislature to weigh the wisdom of

legislation or policy decision of the Government unless it runs counter to the

mandate of the Constitution quoting State of Himachal Pradesh v. Himachal

Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh

5

.

19) He therefore upheld the policy of the State Government in

appointing teachers on fixed pay basis holding that it is not illegal, arbitrary,

discriminatory or violative of Art.14 and 16 of the Constitution of India. He

thus dismissed both the Writ Petitions.

20) Challenging the same, these two Writ Appeals have been filed by

Appellants.

5

(2011) 6 SCC 597

Page 11 of 36

Consideration by the Court

21) The Memorandum dt. 15.12.2001 states:

“GOVERNMENT OF TRIPURA

GENERAL ADMINISTRATION (PERSONNEL &

TRAINING) DEPARTMENT

No.F.20(3)GA(P&T)/96 Dated, Agartala, the 15

th

December 2001

MEMORANDUM

Subject: Fixed Pay - Recruitment on-in Group C and D posts.

In order to have reasonable flexibility to recruit

eligible candidates on fixed pay basis to posts meant for

direct recruitment it has been decided that henceforth

appointment to Group-C and D posts which are not

required to be filled up by selection through the TPSC, may

be made on fixed pay basis. For this purpose posts with

fixed pay should be created by keeping the posts in time

scale in abeyance with the concurrence of GA (AR)/ PCD/

FD. The quantum of fixed pay in respect of such posts will

be fixed with prior approval of the Finance Department.

2. It has also been decided that wherever interview has

been completed or selection has been made for posts having

scale of pay, the selected candidates may be offered

appointment fixed pay basis. If such offer are not accepted

steps should be taken for holding fresh selection creating

fixed pay posts as indicated above.

3. All Departments/ Head of Departments are

requested to take necessary accordingly. No.F.10(2)-

FIN(G)/05/Part-I Sd/- (Mrs. B. Deb Barma) Under

Secretary to the Government of Tripura"

(emphasis supplied)

22) This was modified in the Memorandum dt.16.10.2007 in the

following manner:

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“GOVERNMENT OF TRIPURA

DEPARTMENT OF FINANCE

No.F.10(2)-FIN(G)/05/Part-I Dated, the 16

th

October,

2007.

MEMORANDUM

Subject:- Providing of different benefits to employees recruited

on fixed pay basis by keeping abeyance regular pay scale

posts.

1….

2….

3. On consideration of the above position, it has been

decided to provide following benefits:

i) Those employees who were recruited on Fixed-pay

basis against fixed pay posts created by keeping abeyance

regular scale posts and recruited on observance of all required

formalities including adherence to provision of RR would be

provided benefit of leave, coverage under Die-in-harness

scheme, seniority in service like regular pay scale employees,

counting of full fixed pay period for the purpose of pension and

retirement benefits. Identical benefits would be provided to the

fixed pay employees appointed against supernumerary posts

created in different Departments for providing jobs under

extremist violence cases/ die-in-harness cases. Department-

wise list of such employees whose particulars have been found

consistent with the requirement is enclosed herewith.

ii) Service records of these employees would be

maintained by opening of service-book for each of such fixed

pay employees.

iii) After opening of the service book and on completion of

5 (five) years of service from the date of joining, such

employees would be provided regular scale of pay.

4. To facilitate quick action for implementation of the

above decision, appropriate authorities of the concerned

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Administrative Departments of the State Government are

authorized to take following action:

i) For the purpose of extending the benefits, only those

names are to be considered which are included in the annexure

attached herewith subject to verification of all required

certificate and documents. Benefit in respect of leave is to be

extended to such Fixed-pay employees with effect from 1

st

October, 2007.

ii) After verification of required certificates and

documents and on completion of 5 (five) years of service

without any break, regular pay scale would be provided from

the following date.

iii) After getting benefit of regular scale of pay, the

concerned employee will be eligible to get admissible DA and

other benefit.

iv) If any genuine case is found left out in the enclosed

annexure that may be referred to the F.D. to consider

inclusion.

v) In future wherever new candidates will be recruited

under Fixed-pay post created by keeping abeyance regular

scale post, their names and particulars will have to be sent to

the F.D. for extending the aforesaid benefits to them.

5. All departments are requested to take action

immediately for implementation of the above decisions.

Sd/- illigible

(A. Roy)

Deputy Secretary to the

Government of Tripura”

(emphasis supplied)

The concept of Equal pay for equal work

23) The principle of ‘equal pay for equal work’ has been discussed in

several judgments of the Supreme Court.

Page 14 of 36

24) In Randhir Singh v. Union of India

6

, the Supreme Court of

India held:

“8. It is true that the principle of “equal pay for equal

work” is not expressly declared by our Constitution to be a

fundamental right. But it certainly is a constitutional goal.

Article 39(d) of the Constitution proclaims “equal pay for

equal work for both men and women” as a directive

principle of State Policy. “Equal pay for equal work for

both men and women” means equal pay for equal work for

everyone and as between the sexes. Directive principles, as

has been pointed out in some of the judgments of this Court

have to be read into the fundamental rights as a matter of

interpretation. Article 14 of the Constitution enjoins the

State not to deny any person equality before the law or the

equal protection of the laws and Article 16 declares that

there shall be equality of opportunity for all citizens in

matters relating to employment or appointment to any

office under the State. These equality clauses of the

Constitution must mean something to everyone. To the vast

majority of the people the equality clauses of the

Constitution would mean nothing if they are unconcerned

with the work they do and the pay they get. To them the

equality clauses will have some substance if equal work

means equal pay. … Questions concerning wages and the

like, mundane they may be, are yet matters of vital concern

to them and it is there, if at all that the equality clauses of

the Constitution have any significance to them. The

Preamble to the Constitution declares the solemn

resolution of the people of India to constitute India into a

Sovereign Socialist Democratic Republic. Again the word

“socialist” must mean something. Even if it does not mean

‘to each according to his need’, it must at least mean

6

(1982) 1 SCC 618 : 1982 SCC (L&S) 119, at page 622

Page 15 of 36

“equal pay for equal work”. ……. Construing Articles 14

and 16 in the light of the Preamble and Article 39 (d), we

are of the view that the principle “equal pay for equal

work” is deducible from those Articles and may be

properly applied to cases of unequal scales of pay based

on no classification or irrational classification though

those drawing the different scales of pay do identical work

under the same employer.

9. There cannot be the slightest doubt that the drivers

in the Delhi Police Force perform the same functions and

duties as other drivers in service of the Delhi

Administration and the Central Government. If anything,

by reason of their investiture with the “powers, functions

and privileges of a police officer”, their duties and

responsibilities are more arduous. In answer to the

allegation in the petition that the driver-constables of the

Delhi Police Force perform no less arduous duties than

drivers in other departments, it was admitted by the

respondents in their counter that the duties of the driver-

constables of the Delhi Police Force were onerous. What

then is the reason for giving them a lower scale of pay than

others? There is none. The only answer of the respondents

is that the drivers of the Delhi Police Force and the other

drivers belong to different departments and that the

principle of “equal pay for equal work” is not a principle

which the courts may recognise and act upon. We have

shown that the answer is unsound. The clarification is

irrational. We, therefore, allow the writ petition and direct

the respondents to fix the scale of pay of the petitioner and

the driver-constables of the Delhi Police Force at least on

a par with that of the drivers of the Railway Protection

Force. The scale of pay shall be effective from January 1,

Page 16 of 36

1973, the date from which the recommendations of the Pay

Commission were given effect.”

(emphasis supplied)

25) Thus principle of ‘equal pay for equal work’ as flowing from

Art.14, 16 and Art.39(d) of the Constitution of India is applied to cases of

unequal scales of pay based on no classification or irrational classification and

has been reiterated in a number of cases. It was held that in determining

equality of functions and responsibilities under the principle of “equal pay for

equal work”, it is necessary to keep in mind that the duties of the two posts

should be of equal sensitivity, and also, qualitatively similar. Differentiation

of pay scales for posts with difference in degree of responsibility, reliability

and confidentiality, would fall within the realm of valid classification, and

therefore, pay differentiation would be legitimate and permissible. If there is

no classification or it is irrational or arbitrary, differentiation of pay scales is

impermissible.

26) In State of Punjab v. Jagjit Singh

7

, the Supreme Court summed

up the principles for applying the doctrine of “equal pay for equal work” in the

following manner:

“42.1. The “onus of proof” of parity in the duties and

responsibilities of the subject post with the reference post under

the principle of “equal pay for equal work” lies on the person

who claims it. He who approaches the court has to establish that

the subject post occupied by him requires him to discharge equal

work of equal value, as the reference post (see Orissa University

of Agriculture & Technology case

8

, UT Chandigarh, Admn. v.

7

(2017) 1 SCC 148

8

(2003) 5 SCC 188

Page 17 of 36

Manju Mathur

9

, SAIL case

10

and National Aluminium Co. Ltd.

case

11

).

42.2. The mere fact that the subject post occupied by the claimant

is in a “different department” vis-à-vis the reference post does

not have any bearing on the determination of a claim under the

principle of “equal pay for equal work”. Persons discharging

identical duties cannot be treated differently in the matter of their

pay, merely because they belong to different departments of the

Government (see Randhir Singh case( 6 supra) and D.S. Nakara

case

12

).

42.3. The principle of “equal pay for equal work”, applies to

cases of unequal scales of pay, based on no classification or

irrational classification (see Randhir Singh case( 6 supra)). For

equal pay, the employees concerned with whom equation is

sought, should be performing work, which besides being

functionally equal, should be of the same quality and sensitivity

(see Federation of All India Customs and Central Excise

Stenographers case

13

, Mewa Ram Kanojia case

14

, Grih Kalyan

Kendra Workers’ Union case

15

and S.C. Chandra case

16

).

42.4. Persons holding the same rank/designation (in different

departments), but having dissimilar powers, duties and

responsibilities, can be placed in different scales of pay and

cannot claim the benefit of the principle of “equal pay for equal

work” (see Randhir Singh case( 6 supra), State of Haryana v.

Haryana Civil Secretariat Personal Staff Assn.

17

and Hukum

Chand Gupta case

18

). Therefore, the principle would not be

9

(2011) 2 SCC 452

10

(2011) 11 SCC 122

11

(2014) 6 SCC 756

12

(1983) 1 SCC 305

13

(1988) 3 SCC 91

14

(1989) 2 SCC 235

15

(1991) 1 SCC 619

16

(2007) 8 SCC 279

17

(2002)6 SCC 72

18

(2012) 12 SCC 666

Page 18 of 36

automatically invoked merely because the subject and reference

posts have the same nomenclature.

42.5. In determining equality of functions and responsibilities

under the principle of “equal pay for equal work”, it is necessary

to keep in mind that the duties of the two posts should be of equal

sensitivity, and also, qualitatively similar. Differentiation of pay

scales for posts with difference in degree of responsibility,

reliability and confidentiality, would fall within the realm of valid

classification, and therefore, pay differentiation would be

legitimate and permissible (see Federation of All India Customs

and Central Excise Stenographers case(13 supra) and SBI

case

19

). The nature of work of the subject post should be the same

and not less onerous than the reference post. Even the volume of

work should be the same. And so also, the level of responsibility.

If these parameters are not met, parity cannot be claimed under

the principle of “equal pay for equal work” (see State of U.P. v.

J.P. Chaurasia

20

and Grih Kalyan Kendra Workers’ Union

case(15 supra).

42.6. For placement in a regular pay scale, the claimant has to be

a regular appointee. The claimant should have been selected on

the basis of a regular process of recruitment. An employee

appointed on a temporary basis cannot claim to be placed in the

regular pay scale (see Orissa University of Agriculture &

Technology case( 8 supra).

42.7. Persons performing the same or similar functions, duties

and responsibilities, can also be placed in different pay scales.

Such as — “selection grade”, in the same post. But this

difference must emerge out of a legitimate foundation, such as —

merit, or seniority, or some other relevant criteria (see State of

U.P. v. J.P. Chaurasia( 20 supra)).

19

(2002) 4 SCC 556

20

(1989) 1 SCC 121

Page 19 of 36

42.8. If the qualifications for recruitment to the subject post vis-à-

vis the reference post are different, it may be difficult to conclude

that the duties and responsibilities of the posts are qualitatively

similar or comparable (see Mewa Ram Kanojia case(14 supra)

and State of W.B. v. Tarun K. Roy

21

). In such a case the

principle of “equal pay for equal work” cannot be invoked.

42.9. The reference post with which parity is claimed under the

principle of “equal pay for equal work” has to be at the same

hierarchy in the service as the subject post. Pay scales of posts

may be different, if the hierarchy of the posts in question, and

their channels of promotion, are different. Even if the duties and

responsibilities are same, parity would not be permissible, as

against a superior post, such as a promotional post (see Union of

India v. Pradip Kumar Dey

22

and Hukum Chand Gupta case(18

supra))

42.10. A comparison between the subject post and the reference

post under the principle of “equal pay for equal work” cannot be

made where the subject post and the reference post are in

different establishments, having a different management. Or even,

where the establishments are in different geographical locations,

though owned by the same master (see Harbans Lal case

23

).

Persons engaged differently, and being paid out of different

funds, would not be entitled to pay parity (see Official Liquidator

v. Dayanand

24

).

42.11. Different pay scales, in certain eventualities, would be

permissible even for posts clubbed together at the same hierarchy

in the cadre. As for instance, if the duties and responsibilities of

one of the posts are more onerous, or are exposed to higher

nature of operational work/risk, the principle of “equal pay for

equal work” would not be applicable. And also when the

reference post includes the responsibility to take crucial

21

(2004) 1 SCC 347

22

(2000)8 SCC 580

23

(1989) 4 SCC 459

24

(2008) 10 SCC 1

Page 20 of 36

decisions, and that is not so for the subject post (see SBI case(19

supra)).”

(emphasis supplied)

A regular appointee is entitled to regular pay scale

27) Thus as per para 42.6 of Jagjit Singh( 7 supra), for placement in

a regular pay scale, the claimant has to be a regular appointee. The claimant

should have been selected on the basis of a regular process of recruitment.

28) The appellants satisfy this norm because the advertisements

pursuant to which they had been appointed stated that ‘permanent posts’ of

Graduate and Post Graduate teachers i.e. they were regular posts, were being

filled up. There was admittedly, a regular process of selection and all

appellants fulfilled the eligibility criteria prescribed in the recruitment Rules

and were selected on merit.

29) The respondents have not disputed that prior to 2001, persons

appointed to Group-C and Group-D posts were getting regular scale of pay

from the date of their appointment and only in 2001, the fixed pay policy was

introduced; and later in 2007 it was restricted to 5 years. After the 5 year

period expires, the appointee is being paid regular scale of pay.

30) The respondents have also not disputed that persons appointed

through Tripura Public Service Commission to Group C and D posts were

getting regular scale of pay from the date of their appointment.

31) It is not the case of the respondents that appellants and the

Graduate and Post Graduate Teachers appointed before 2001 or through the

Tripura Public Service Commission previously are discharging different duties

or volume of work, responsibility or sensitivity. There is no denial of the

Page 21 of 36

appellant’s contention that they are performing same duties as them. So there

is no rational basis of differentiation between the appellants and such persons.

32) So in the same pool of teachers, some of whom as Graduates and

some are Post Graduates, some people are being paid regular scale of pay

from initial appointment (when appointed prior to 2001 and those appointed

through the Tripura Public Service Commission), but others like appellants are

not being paid the regular scale of pay for first 5 years and only later, when

they complete 5 years service, they are being paid the regular scale of pay,

having been appointed after 2007.

33) As per Jagjit Singh ( 7 supra), the principle of “equal pay for

equal work”, applies to cases of unequal scales of pay, based on no

classification or irrational classification. The cases of the appellants squarely

fall in this category.

34) The action of the respondents is blatantly arbitrary and violates

Art.14 and 16 of the Constitution of India. There cannot be discrimination

amongst them by giving some regular scale and some fixed pay.

35) In fact in certain decisions referred to below, the Supreme Court

had applied the principle of ‘equal pay for equal work’ and granted relief to

casual workers on daily wage basis and even those appointed for short

duration such as one year or daily rated employees on par with regular

appointees to such posts. The appellants, who have been appointed against

regular posts which are permanent therefore stand on a much better and

stronger footing than such persons. We shall briefly deal with some of them.

Page 22 of 36

36) In Dhirendra Chamoli v. State of U.P

25

, two Class IV

employees of the Nehru Yuvak Kendra, Dehradun, engaged as casual workers

on daily-wage basis, claimed that they were doing the same work as Class IV

employees appointed on regular basis. The reason for denying them the pay

scale extended to the regular employees was that there was no sanctioned post

to accommodate the petitioners, and as such, the assertion on behalf of the

respondent employer was, that they could not be extended the benefits

permissible to regular employees. Furthermore, their claim was sought to be

repudiated on the ground that the petitioners had taken up their employment

with the Nehru Yuvak Kendra knowing fully well that they would be paid

emoluments of casual workers engaged on daily-wage basis, and therefore,

they could not claim beyond what they had voluntarily accepted.

37) The Supreme Court held that it was not open to the Government

to exploit citizens, especially when India was a welfare State, committed to a

socialist pattern of society. The argument raised by the Government was found

to be violative of the mandate of equality enshrined in Article 14 of the

Constitution. The Supreme Court held that the mandate of Article 14 ensured

that there would be equality before law and equal protection of the law. It was

inferred therefrom that there must be “equal pay for equal work”. Having

found that employees engaged by different Nehru Yuvak Kendras in the

country were performing similar duties as regular Class IV employees in its

employment, it was held, that they must get the same salary and conditions of

service as regular Class IV employees, and that, it made no difference whether

25

(1986) 1 SCC 637

Page 23 of 36

they were appointed on sanctioned posts or not. So long as they were

performing the same duties, they must receive the same salary.

38) In Surinder Singh v. CPWD

26

, the petitioners were employed by

the Central Public Works Department on daily-wage basis. They demanded

the same wage as was being paid to permanent employees doing identical

work. Herein, the respondent employer again contested the claim by raising

the plea that petitioners could not be employed on regular and permanent basis

for want of permanent posts. One of the objections raised to repudiate the

claim of the petitioners was that the doctrine of “equal pay for equal work”

was a mere abstract doctrine and was not capable of being enforced in law.

The objections raised by the Government were rejected. The

Supreme Court held that all organs of the State were committed to the

directive principles of the State policy. It was pointed out that Article 39

enshrined the principle of “equal pay for equal work”, and accordingly this

Court concluded that the principle of “equal pay for equal work” was not an

abstract doctrine. It was held to be a vital and vigorous doctrine accepted

throughout the world, particularly by all socialist countries. Referring to the

decision rendered by this Court in D.S. Nakara case

27

, it was held, that the

above proposition had been affirmed by a Constitution Bench of this Court. It

was held that the Central Government, the State Governments and likewise,

all public sector undertakings, were expected to function like model and

enlightened employers and further, the argument that the above principle was

merely an abstract doctrine which could not be enforced through a court of

law, could not be raised either by the State or by State undertakings. The

26

(1986) 1 SCC 639

27

(1983) 1 SCC 305

Page 24 of 36

petitions were accordingly allowed, and the Nehru Yuvak Kendras were

directed to pay all daily-rated employees, salaries and allowances as were paid

to regular employees from the date of their engagement.

39) In Bhagwan Dass v. State of Haryana

28

, the Education

Department of the State of Haryana was pursuing an adult education scheme,

sponsored by the Government of India, under the National Adult Education

Scheme. The object of the Scheme was to provide functional literacy to

illiterates in the age group of 15 to 35, as also to impart learning through

special contract courses to students in the age group of 6 to 15, comprising of

dropouts from schools. The petitioners were appointed as Supervisors. They

were paid remuneration @ Rs 5000 per month, as fixed salary. Prior to 7-3-

1984, they were paid fixed salary and allowance, @ Rs 60 per month.

Thereafter, the fixed salary was enhanced to Rs 150 per month. The reason for

allowing them fixed salary was that they were required to work only on part-

time basis. The case set up by the State Government was, that the petitioners

were not full-time employees; their mode of recruitment was different from

Supervisors engaged on regular basis; the nature of functions discharged by

them was not similar to those discharged by Supervisors engaged in the

regular cadre; and their appointments were made for a period of six months,

because the posts against which they were appointed were sanctioned for one

year at a time.

Having examined the controversy, the Supreme Court rejected all

the above submissions advanced on behalf of the State Government. It was

held, that the duties discharged by the petitioners even though for a shorter

28

(1987) 4 SCC 634

Page 25 of 36

duration were not any different from Supervisors engaged in the regular cadre.

Even though recruitment of Supervisors in the regular cadre was made by the

Subordinate Selection Board by way of an open selection, whereas the

petitioners were selected through a process of consideration which was limited

to a cluster of a few villages, it was concluded that, that could not justify the

denial to the petitioners, wages which were being paid to Supervisors,

working in the regular cadre. It was held, that so long as the petitioners were

doing work which was similar to the work of Supervisors engaged in the

regular cadre, they could not be denied parity in their wages. Accordingly it

was held, that from the standpoint of the doctrine of “equal pay for equal

work”, the petitioners could not be discriminated against in regard to pay

scales. Having concluded that the petitioners possess the essential

qualification for appointment to the post of Supervisor, and further the duties

discharged by them were similar to those appointed on regular basis, it was

held, that the petitioners could not be denied wages payable to regular

employees. The Court also declined the plea canvassed on behalf of the

Government that they were engaged in a temporary scheme against posts

which were sanctioned on year-to-year basis. On the instant aspect of the

matter, it was held, that the same had no bearing to the principle of “equal pay

for equal work”. It was held that the only relevant consideration was whether

the nature of duties and functions discharged and the work done was similar.

While concluding this, the Court clarified that in the said case, it was dealing

with temporary employees engaged by the same employer, doing work of the

same nature as was being required of those engaged in the regular cadre on a

regular basis. It was held that the petitioners, who were engaged on temporary

Page 26 of 36

basis as Supervisors, were entitled to be paid on the same basis, and in the

same pay scale, at which those employed in the regular cadre discharging

similar duties as Supervisors were being paid.

40) These decisions were all referred to in Jagjit Singh (7 supra)

case.

41) When the above decisions apply principle of ‘equal pay for equal

work’ to daily wage employees and temporary employees and holds they are

entitled to minimum of scale of pay of regular employees, the appellants who

were appointed against regular vacancies through a regular process of

selection on merit, undoubtedly stand on a better and stronger footing. They

could not have been denied the benefit of regular pay scale and other benefits

from the date of their initial appointment by the respondents on the basis of

the two Memorandums.

42) So the policy framed by the State Government in the

memorandum dt.15.12.2001 and memorandum dt.16.10.2007, though

approved by the Cabinet, of giving ‘fixed pay’ to persons appointed on regular

posts by keeping in abeyance the regular pay scale is arbitrary, irrational and

unreasonable and violates Art.14 of the Constitution of India.

43) It is not open to the Government to exploit citizens, especially

when India is a welfare State, committed to a socialist pattern of society. The

State Government is expected to function like model and enlightened

employer and cannot resort to such actions.

Policy decisions/Cabinet decisions not immune from judicial review

44) We also do not accept the plea of the State that since the

decisions taken in these two memorandums dt.15.12.2001 and 16.10.2007 are

Page 27 of 36

pursuant to Cabinet decisions/policy decisions this Court ought not to interfere

with the same, and the single Judge had rightly denied relief to the appellants.

45) This issue is no more res integra and the Supreme Court has held

time and again that if policies framed by the Government are arbitrary or

unreasonable or violate any fundamental right, they can be challenged in

Constitutional Courts and relief can also be granted to such petitioners.

46) Way back in 1972 , the Supreme Court in Bennett Coleman &

Co. v. Union of India

29

, while dealing with newsprint import policy held that

it violated Art.14 and Art.19(1)(d) of the Constitution of India. It held:

“69. …The 10 page ceiling imposed affecting 22 big

newspapers operating above 10 page level with

approximate circulation of over 23 lakhs i.e. more than 25

per cent of the total circulation is arbitrary and treats

them equally with others who are unequal irrespective of

the needs and requirements of the big dailies and thus

violates Article 14 of the Constitution.

70. The impeached policy violates Article 14

because it treats newspapers which are not equal equally

in assessing the needs and requirements of newsprint. The

Government case is that out of 35 newspapers which were

operating on a quota calculated on a higher page level

than 10 pages 28 newspapers will benefit by the

impeached policy of 1972-73. But seven newspapers out of

22 which were operating above 10 page level are placed

at a disadvantage by the fixation of 10 page limit and

entitlement to quota on that basis. There is no intelligible

differentia. Nor has this distinction any relation to

equitable distribution of newsprint. The impeached policy

also offends Article 19(1)(a) of the Constitution.

29

(1972) 2 SCC 788, at page 816

Page 28 of 36

Newspapers like 19 language dailies reduced their pages

in order to increase circulation though such language

dailies had prior to 1972-73 been given quota to increase

pages. Under the impeached policy these language dailies

are given additional quota to increase their pages against

to 10.”

(emphasis supplied)

47) Again in 1980, in Nishi Maghu v. State of J & K

30

, it was held

that if a policy decision is arbitrary, it is not immune from challenge. The

Supreme Court observed:

“12…. Reserving 50 marks for interview out of a

total of 150 (100 for written examination and 50 for

interview) does seem excessive especially when the time

spent was not more than 4 minutes on each candidate. It is

difficult to see how it is possible within this short span of

time to make a fair estimate of a candidate’s suitability on

a consideration of the five specified factors which are not

capable of easy determination, such as physical fitness,

personality, aptitude, general knowledge and general

intelligence. It is also not clear how by merely looking at a

candidate the Selection Committee could come to a

conclusion about his or her physical fitness. The fact that

the allotment of marks is in accordance with a policy

decision may not conclude the matter in all circumstances;

if that decision is found to be arbitrary and infringing

Article 14 of the Constitution, it cannot claim immunity

from challenge.”

(emphasis supplied)

48) In 1991, in Shrilekha Vidyarthi (Kumari) v. State of U.P

31

., the

Supreme Court declared that Article 14 of the Constitution of India applies

30

(1980) 4 SCC 95, at page 102

Page 29 of 36

also to matters of governmental policy and if the policy or any action of the

government, even in contractual matters, fails to satisfy the test of

reasonableness, it would be unconstitutional. The wide sweep of Article 14

and the requirement of every State action qualifying for its validity on this

touchstone, irrespective of the field of activity of the State, has long been

settled.

49) In 1995, the Supreme Court reiterated it in State of Rajasthan v.

Sevanivatra Karamchari Hitkari Samiti

32

, held:

“24. …. The wisdom in a policy decision of the

Government, as such, is not justiciable unless such policy

decision is wholly capricious, arbitrary and whimsical

thereby offending the Rule of law as enshrined in Article

14 of the Constitution or such policy decision offends any

statutory provisions or the provisions of the Constitution.

Save as aforesaid, the Court need not embark on

uncharted ocean of public policy.”

(emphasis supplied)

50) So there is no merit in the plea of respondents that there is

absolute immunity to an administrative decision merely because it is a policy

decision approved by the State Cabinet.

51) Since the said policy in the Memorandum dt.15.12.2001 and

Memorandum dt.16.10.2007 is violative of Art.14 of the Constitution of

India, they cannot be allowed to stand and are accordingly struck down.

31

(1991) 1 SCC 212 : 1991 SCC (L&S) 742, at page 239

32

(1995) 2 SCC 117 : 1995 SCC (L&S) 415 : (1995) 29 ATC 199, at page 125 :

Page 30 of 36

No plea raised by respondents in their counter affidavits about financial

stringency and so single Judge erred in basing his judgment on said plea

52) There is much discussion in the impugned judgment of the

learned Single Judge about financial constraints of the State resulting in

adopting the policy of fixed pay, but we have not been able to find any

pleading to that effect in the counter affidavits filed by the respondents before

the learned Single Judge.

53) No material has also been placed before us to show that the State

Government had financial constraints.

54) When there is no such plea in the counter affidavit and no

material filed to support it, it was not open to the learned single judge to create

a ground of justification for the respondents to adopt the fixed pay policy

contained in the two impugned Memorandums.

55) The action of the respondents in issuing appointment letters to the

appellants stating that their appointment is temporary and liable to be

terminated with 3 months notice, is patently illegal, arbitrary and violative of

Art.14 of the Constitution of India. Having advertised ‘permanent’ teacher

posts, after the selection process is completed, it is not permissible for the

respondents to appoint them as ‘temporary teachers’ for 1 year with their

services terminable on 3 months' notice. They are estopped by their own

advertisement from doing so.

The respondents cannot plead appellants are estopped from challenging

the ‘fixed pay’ clause in their appointments because they were aware of it

from the advertisements

56) The plea of the respondents that appellants were aware that they

will be getting only fixed pay from the date of their appointment because it

Page 31 of 36

was mentioned in the advertisements and so they cannot claim regular pay

scale, is also untenable.

57) There can be no dispute that bargaining power between the

respondents and the appellants is unequal. The appellants cannot be expected

to negotiate individually with the respondents about the illegality committed

by the respondents in giving them ‘fixed pay’ in their respective appointment

letters though they were getting appointed against regular/permanent posts

after undergoing a proper selection process.

58) In Central Inland Water Transport Co. v. Brojonath

33

, the

Supreme Court declared:

“100. … A clause such as Rule 9(i) in a contract of employment

affecting large sections of the public is harmful and injurious to

the public interest for it tends to create a sense of insecurity in

the minds of those to whom it applies and consequently it is

against public good. Such a clause, therefore, is opposed to

public policy and being opposed to public policy, it is void

under Section 23 of the Indian Contract Act.

101. It was, however, submitted on behalf of the appellants

that this was a contract entered into by the Corporation like

any other contract entered into by it in the course of its trading

activities and the court, therefore, ought not to interfere with it.

It is not possible for us to equate employees with goods which

can be bought and sold. It is equally not possible for us to

equate a contract of employment with a mercantile transaction

between two businessmen and much less to do so when the

contract of employment is between a powerful employer and a

weak employee.”

102. It was also submitted on behalf of the appellants that

Rule 9(i) was supported by mutuality inasmuch as it conferred

33

(1986) 3 SCC 156

Page 32 of 36

an equal right upon both the parties, for under it just as the

employer could terminate the employee’s service by giving him

three months’ notice or by paying him three months’ basic pay

and dearness allowance in lieu thereof, the employee could

leave the service by giving three months’ notice and when he

failed to give such notice, the Corporation could deduct an

equivalent amount from whatever may be payable to him. It is

true that there is mutuality in Rule 9(i)—the same mutuality as

in a contract between the lion and the lamb that both will be

free to roam about in the jungle and each will be at liberty to

devour the other. When one considers the unequal position of

the Corporation and its employees, the argument of mutuality

becomes laughable.”

(emphasis supplied)

59) This logic applies equally to the contracts between the appellants

and respondents and the clauses (a) appointing them on temporary basis; (b)

liable for termination without reason with 3 months' notice and (c) denying

them regular wages by paying only fixed wages for 5 years after appointment

in their appointment letters are all opposed to public policy and hit by Section

23 of the Contract Act,1872 and void.

There is no estoppel against the Constitution and no waiver of fundamental right

60) There cannot be any estoppel against the Constitution of India

and there cannot be any waiver of a fundamental right. In Olga Tellis v.

Bombay Municipal Corporation

34

, the Supreme Court held :

“ 28. … The Preamble of the Constitution says that India is

a democratic Republic. It is in order to fulfil the promise of

the Preamble that fundamental rights are conferred by the

Constitution, some on citizens like those guaranteed by

Articles 15, 16, 19, 21 and 29 and, some on citizens and

34

(1985) 3 SCC 545

Page 33 of 36

non-citizens alike, like those guaranteed by Articles 14, 21,

22 and 25 of the Constitution. No individual can barter away

the freedoms conferred upon him by the Constitution. A

concession made by him in a proceeding, whether under a

mistake of law or otherwise, that he does not possess or will

not enforce any particular fundamental right, cannot create

an estoppel against him in that or any subsequent

proceeding. Such a concession, if enforced, would defeat the

purpose of the Constitution. Were the argument of estoppel

valid, an all-powerful State could easily tempt an individual

to forego his precious personal freedoms on promise of

transitory, immediate benefits. Therefore, notwithstanding

the fact that the petitioners had conceded in the Bombay

High Court that they have no fundamental right to construct

hutments on pavements and that they will not object to their

demolition after 15-10-1981, they are entitled to assert that

any such action on the part of public authorities will be in

violation of their fundamental rights. How far the argument

regarding the existence and scope of the right claimed by the

petitioners is well-founded is another matter. But, the

argument has to be examined despite the concession.

29. The plea of estoppel is closely connected with the plea

of waiver, the object of both being to ensure bona fides in

day-to-day transactions. In Basheshar Nath v. CIT

35

, a

Constitution Bench of this Court considered the question

whether the fundamental rights conferred by the

Constitution can be waived. Two members of the Bench

(Das, C.J. and Kapoor, J.) held that there can be no waiver

of the fundamental right founded on Article 14 of the

Constitution. Two others (N.H. Bhagwati and Subba Rao,

JJ.) held that not only could there be no waiver of the right

conferred by Article 14, but there could be no waiver of any

35

AIR 1959 SC 159

Page 34 of 36

other fundamental right guaranteed by Part III of the

Constitution. The Constitution makes no distinction,

according to the learned Judges, between fundamental

rights enacted for the benefit of an individual and those

enacted in public interest or on grounds of public policy.”

61) This was again reiterated recently in Lombardi Engg. Ltd. v.

Uttarakhand Jal Vidyut Nigam Ltd.

36

62) So the respondents cannot contend that the advertisements on the

basis of appellants were selected and appointed mentioned that the appellants

would get ‘fixed pay’, that the appellants accepted the same without

questioning it and they are estopped from now contending otherwise.

63) We also reject the plea of the respondents that :

(i) the Recruitment Rules indicate the extent of the scale of pay and

not the formula for determination of pay or the guarantee for grant of a regular

pay scale;

(ii) that the Memorandum dt.15.12.2001 and the Memorandum

dt.16.10.2007 together speak of the formula for the determination of pay;

(iii) that these executive instructions do not interfere with the pay

scale but settle down the formula for determination of pay;

(iv) and so the subjects of the two are different and there is no cause

to equate the same.

Such hair splitting cannot be done and the so called distinction is

meaningless and absurd. It cannot be countenanced.

36

(2024) 4 SCC 341

Page 35 of 36

64) We agree with the contention of the appellants that the intent

behind the policy to appoint only the Group C and D employees, who are

lowest in the hierarchy of employees, on fixed pay is to deny fair and

legitimate salary to them and amounts to their exploitation and that the State

has a duty, while formulating policies, to minimize the inequalities of income

and eliminate inequalities in status, facilities and opportunities.

65) Since the appellants have approached this Court only in 2022 and

not immediately after their appointment as Graduate/Post Graduate teachers,

we direct that the benefit of regular pay be given to each of them notionally

from the date of their joining their service initially as per appointment orders

issued to them by respondents, but actual financial benefits (arrears) shall be

paid for period 3 years prior to the dates of filing of the respective Writ

Petitions with interest at 9% p.a. till date of actual payment which shall not be

more than 3 months from today.

66) For all the aforesaid reasons:

(a) The Writ Appeals are allowed;

(b) The common judgment of the learned Single Judge dt.17.1.2025

in W.P.(C) N0.68 of 2022 and W.P.(C).No.968 of 2022 is set aside;

Consequently, the said Writ Petitions are allowed.

(c) The Memorandum dt.15.12.2001 and the Memorandum

dt.16.10.2007 are declared arbitrary, unconstitutional and violative of Art.14

of the Constitution of India;

(d) The appellants shall be deemed to have been regularly appointed

to the Graduate Teacher and Post Graduate Teacher posts in the School

Page 36 of 36

Education Department of the State of Tripura from their initial date of

appointment ;

(e) the benefit of regular pay and other service benefits be given to

each of them notionally from the date of their joining their service initially as

per appointment orders issued to them by respondents, but actual financial

benefits (arrears) shall be paid for period 3 years prior to the dates of filing of

the respective Writ Petitions with interest at 9% p.a. till date of actual payment

which shall not be more than 3 months from today.

(f) The respondents shall also pay costs of Rs.2000/- within 3

months to each of the appellants.

Pending applications (if any) shall stand disposed of.

(BISWAJIT PALIT, J) (M.S. RAMACHANDRA RAO, CJ)

Pulak