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PETITIONER: CHIEF SECRETARY TO GOVERNMENT OF ANDHRA PRADESH & ANR.

       Vs.

RESPONDENT: V.J. CORNELIUS ETC.

DATE OF JUDGMENT18/02/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1981 AIR 1099            1981 SCR  (2) 930  1981 SCC  (2) 347        1981 SCALE  (1)363

ACT:      Andhra Pradesh  Revised Scales  of Pay Rules 1969, Rule 3(2) &  Fundamental Rules,  Rule 22(a)(ii)-Fixation  of pay- Provision that  junior employee  in selection grade of lower post not  to draw  more pay than his senior holding a higher post-Validity of.

HEADNOTE:      To implement  the  recommendations  of  a  one-man  Pay Commission, the  State Government  issued the Andhra Pradesh Revised Scales  of Pay Rules 1969 providing for the revision of pay  and creation of selection grade posts. The selection grade scale  was fixed  by adding  three increments  to  the maximum of the revised scale of pay.      While  implementing  the  pay  scales,  the  Government realised that  a senior  holding a  permanent  post  in  one category but  holding a;  post in  the not  higher grade  on promotion would  draw less  pay in  the higher  post than  a junior in  the lower  category who  was given  the selection grade. To  avoid the  anomalous situation  thus created  the Government by  an executive  order direct ed that the pay of an employee  placed in  selection grade shall be so fixed as not to  exceed the  pay of  his senior working in the higher post on promotion.      This executive  instruction was struck down by the High Court as  being violative  of Articles 14 and 16 and also on the ground  that the executive instruction could not prevail over Fundamental Rule 22 (a) (ii).      The Government  thereupon introduced  Rule 5(2)  in the Rules  with  retrospective  effect  from  the  date  of  the original order. In D. Krishnamurthy & Ors v. State of Andhra Pradesh &  Anr. this  rule was struck down by the High Court as being  violative of  Articles 14  and 16.  No appeal was, however, preferred  from the  judgment  of  the  High  Court striking down the rule.      Instead of  following a  uniform policy in revising the pay of all employees in compliance with the direction of the High Court,  the Government  re-fixed the pay of some of the employees holding  selection grade  posts but declined to do so in  the case of others on the ground that the re-fixation would be  done only in the case of employees who had secured such directions.

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     In  the appeals by the Government to this Court it was contended that  it was wrong to suggest that since no appeal had been preferred against the judgment of the High Court in D. Krusgbanurthy’s  case all the judgments of the High Court involving a  similar question  had become  final  become  D. Krishnamurthy’s case  related  to  an  altogether  different category of employees of the State Government. 931 Dismissing the appeals, ^      HELD: 1.  When the  High Court issues a writ, direction or order  under Art. 226 of the Constitution, it is not open to the  State Government  to  implement  the  decision  with regard to  some and  deny relief  to others,  although  they belong to  the  same  class  of  persons,  and  are  equally governed by  the principles  laid down. The State Government is expected  to adopt  a uniform policy In regard to all its employees. [936 C-D]      2. Replacement of an executive instruction by the State Government  by   a  rule   framed  under  Art.  309  of  the Constitution, for  the fixation  of pay of a person promoted to the  Selection Grade at a stage lower than the minimum of the scales  of pay  of such  Selection Grade  so as  not  to exceed the pay of his seniors working in the higher posts on promotion, does  not cure the constitutional ice inherent in the Government action as the provision is violative of Arts. 14 and 16 of the Constitution. [935 G-H]      3. The  judgment of the High Court, by which sub-r. (2) of r.  5 of  the Andhra Pradesh Revised Scales of Pay Rules, 1969 having been struck down as offending Arts. 14 and 16 of the Constitution  and as  being not  in conformity  with  FR 22(a)(ii) not  having been  appealed from,  had  attained  a finality and  the re-fixation of pay, if any, had to be done as if sub-r. (2) of r. 5 never existed [937 B]      4. It  is not  open to  the Government  to question the correctness of  the judgment  of the  High Court when it had attained finality,  particularly when in compliance with the directions, it had re-fixed the pay of some of the employees in the  Selection Grade posts, on the pretext that the right of appeal  was not  lost in the case of others in respect of whom no  such direction  has been  issued. At  any rate, the point not having been taken before the High Court, could not be allowed to be raised for the first time under Art. 136 of the Constitution. [936 H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal NO. 383 Of 1976.      Appeal by  special leave  from the  Judgment and  Order dated 12-6-1975  of the  Andhra Pradesh  High Court  in Writ Appeal NO. 313 of 1975.                        Connected with      Civil Appeal  NOS. 1434-85/77, 2669/79 & 2670/79, 1763- 1781/ 77,  2511, 2625, 2679, 2776/77, 332, 333, 909 & 930/78 and S.L.Ps. 70/76, 1769/77, 4246, 4379/77 and 251/79.      P. Rama  Reddy, G.  S. Narayana  and G.  N. Rao for the Appellant in all the matters.      B. Parthasarthy  for  the  Respondent  in  CAs  383/76, 1443/77, 1444/77  (for R. 5), CA 1456/77 (for RR. 2 & 4), CA 1461/77 for  R.17), CA  1463/77 for RR-l & 2 and R. 10 in CA 1464/77 for  R.1 in CA 1466/77 for R.1, 1468/77 for both the Respondents, 1470/  77 for  R. 1,  CA 1476/77 for R. 2, 1481 for RR, 1767/77 for R. 1,

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932 1768/77 for  RR 1,  2, 4, and 5-8, 1773/77 for RR 1-4 and 5, 2625/ 77  for R.1,  2511/77 for all the RRs. 332/78 for R.3, 930/78 for RR. SLP 1769/76 for RR 1-4, 5 & 7.      K. Ram  Kumar and Mrs. J. Ramachandran for the RR in CA 1472/77, CA 1473/77 for RR 1-5, 7, 8, 14, 15 and CA 1485 for all RRs.      A. Subba Rao in CA 1434 for RR1, 3, 4, 7, 8, 9 & 11, in CA 1440/77  for RR  1, 2, 3, 4, 6, 7, 10, 11, 13 & 16, in CA 1457/77 for Respondent (Sole), CA 1459/77 for RR 2, 3 and 4, CA 1484/77  for RR 1-2, 16-20, 22, 23, 28, 30, 32, 35 and in CA 1764/77 for Respondent (Sole).      G. Narasimhulu for all the Respondents in CA 1781/77.      B. Kanta  Rao for  RR 1-3  in CA 1441/77, in CA 1442/77 for RR  4, 8-11,  14, 15, 23 and 24, in CA 1769/77 for RR 1- 35, 37-47,  49-62, 64,  65, 67-79, 81-83, 85, 87, 89, 91-99, 101-104, 106-108,  110-114, 116-117, 119-123, in CA 2670 for RR 1-5, 7-12 and 14-16 and 19-20 and in SLP 251/79 for RR 1- 8.      The Judgment of the Court was delivered by      SEN, J.-This  and the  connected 81  appeals by special leave and  seven special  leave petitions  directed  against various judgments  and orders  of the  Andhra  Pradesh  High Court and  the Andhra Pradesh Administrative Tribunal, raise a common  question: Whether  it is permissible for the State Government of  Andhra Pradesh  to enforce sub-r. (2) of r. 5 of the  Andhra Pradesh  Revised Scales  of Pay  Rules,  1969 (hereinafter referred to as ’the Rules’) issued by the State Government under  proviso to  Art. 309  of the Constitution. That depends  on whether  the  Government  is  competent  to withhold the Selection Grade pay-scales contrary to FR 22(a) (ii) to  which the  respondents were entitled on their being appointed to  Selection Grade posts. The Government tries to justify such  fixation of  pay at  a lower  level  than  the minimum of  the Selection Grade pay-scales on the basis that it was  to ensure  that seniors  holding higher posts do not draw in  such higher  posts a pay less than what is drawn by their juniors in the lower posts in the Selection Grade.      The litigative  propensities of  the Government know no bounds. The Government still assumes that it is within their powers to  fix the  pay of  the respondents  lower than  the minimum of  the pay  scales of  the Selection Grade posts to which  they  were  promoted  although  the  High  Court  has unequivocally struck down the impugned sub-r. (2) of r. 5 of the  Rules   as  ultra  vires  the  State  Government  being violative 933 of Arts. 14 and 16 of the Constitution and being contrary to FR  22  (a)  (ii).  It  is  somewhat  unfortunate  that  the Government should  have embarked upon this course of action, thereby subjecting  thousands of  their employees  into this fruitless litigation,  which is  nothing but  an exercise in futility, resulting in wasteful expenditure of public money. We wish to impress upon the Government that they are in duty bound to  respect the  judgments and  orders of  the  courts pronouncing upon  the constitutional validity of the various rules, orders and notifications issued by the Executive.      To bring  out the  point involved,  it is  necessary to state a  few facts. By G.O. MS. 173, Finance, dated June 13, 1969, the State Government issued the Andhra Pradesh Revised Scales of Pay Rules, 1969, providing for revision of pay and creation of  Selection  Grade  posts,  the  number  of  such Selection Grade  posts for  every category  being limited to 15% of  the total  number of  posts in  that category with a view to  implement the  recommendations of  the One-man  Pay

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Commission appointed  for the  purpose. The  Selection Grade scale was fixed by adding three increments to the maximum of the revised  scale of  pay. The pay-scales for the Selection Grade so  fixed were  found to  have a higher start than the minimum pay  prescribed for  the  next  higher  category  of posts. Some of the senior persons holding permanent posts in one category,  but holding posts in the next higher category on promotion were found to draw less pay in the higher posts as compared  to their juniors in the lower category who were given the  Selection Grade scale of pay. The Government felt that this  would result  in serious discontentment among the senior employees  holding higher  posts but drawing less pay than the  minimum prescribed  for the Selection Grade in the lower  category.   At  a   meeting  of  the  Secretaries  to Government held  on June  24, 1969,  it was  decided to  set right this  anomalous position, by the issue of an executive order. Consequently,  the Government  issued a  departmental instruction in  U.O. Note  No. 808/PC/69-I  dated  July  26, 1969, directing  that the  pay of  an employee placed in the Selection Grade  shall be  so fixed as not to exceed the pay of his seniors working in the higher post on promotion. Para 3 (iii) of the U.O. Note was as follows:           (iii) Since  in many  cases, the  minimum  of  the      ’selection grade’  is higher  than the  minimum of  the      next higher  grade, there  is a possibility of a junior      appointed to  ’selection grade’  hereafter drawing more      pay than  his senior  who has  already been promoted to      higher grade.  With a view to avoid such an anomaly, it      will be  necessary to  prescribe that a person promoted      to a  ’selection grade’  shall draw  the minimum of the      remedy was  by way  of an  appeal.  That  judgment  has      attained a 934      promotion category  should be  drawing less  than  such      mini mum  his pay  shall be  limited to  the pay  being      drawn by such senior, in his own scale.      The direction contained in para 3(iii) of the aforesaid U.O. Note  was struck  down by  Chinnappa Reddy, J. in S. A. Prabhakar &  Ors. v.  Government of  Andhra Pradesh  by  his judgment dated  December 26,  1973, on  the ground  that the executive instruction  could not pre vail over FR 22(a) (ii) and secondly,  fixation of  pay at  anything lower  than the minimum of  the scale  of pay  sanctioned for  the Selection Grade posts  was violative  of Arts.  14 and 16 and was also contrary  to   the  Directive  Principles  of  State  Policy enshrined in Art. 39 of the Constitution, according to which there shall  be equal  pay for equal work. The learned Judge was of the view that the Government having created Selection Grade posts  carrying a  certain scale  of  pay  and  having appointed persons to those posts, it was not open to them to allow that pay to some and deny to others on the ground that their seniors  working elsewhere  were not  drawing the same scale of pay.      The  Government   preferred  a  Letters  Patent  Appeal against the  judgment of  Chinnappa Reddy,  J., and  made  a grievance that  while the  writ  petition  was  pending  the offending U.O.  Note (No.  808/PC/ 69-I dated July 26, 1969) had been  substituted by  sub-r. (2)  of r.  5 of  the Rules issued under  GO MS  215, Finance,  dated September 5, 1973, with retrospective  effect from  March 19,  1969. That being so, the  Division Bench  dismissed the appeal observing that the appropriate  remedy  was  to  file  a  review  petition. Against the  judgment of  the Division Bench, the Government preferred a  petition for  grant of  special  leave  in  the Supreme Court  under Art. 136 of the Constitution, being SLP

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(Civil) No.  1878 of 1975 and this Court issued a show cause notice to  the respondents  on September  28, 1975.  But the Special Leave Petition was ultimately dismissed as withdrawn on October  27, 1978,  in view  of the  fact that  a  review petition had been filed.      Sub-r. (2)  of r.  5 of the Rules, inserted by G.O. MS. 215, Finance, dated September 5, 1973, reads:           (2) Notwithstanding anything contained in sub-rule      (1) or any other rule relating to fixation of pay, if a      person in  any post  is promoted  or appointed  to  the      selection grade  in that post he shall draw the minimum      of such  selection grade  provided that  if any  of his      seniors, who  is promoted or appointed by transfer to a      higher post, draws a pay in that 935      higher post  less than  such minimum,  his pay shall be      limited to the pay so drawn by his senior.           Explanation.-For the  purpose of  this sub-rule, a      person shall  be deemed  to be a senior to another even      though both  of them  belong to  two different classes,      categories/grades, provided  these two  are sources for      promotion or appointment by transfer to a higher post. In D. Krishnamurthy & Ors. v. State of Andhra Pradesh & Anr. (Writ Petition  No. 4459  of 1972),  Muktadar,  J.,  by  his judgment dated  August 12,  1974, struck down the rule as it was violative  of Arts.  14 and  16 of the Constitution. The learned Judge  observed that in view of the decision of this Court in  B. S. Vadera v. Union of India, Ors it was settled law that  rules framed  under the  proviso to Art 309 of the Constitution,  whether   retrospective  or   prospective  in effect, must  be enforced,  if  framed  by  the  appropriate authority, unless  it can  be shown that the rules so framed are in  violation of any of the rights guaranteed under Part III or  any other  provision of  the Constitution. He was of the view  that sub-r.  (2) of  r.5 of  the  Rules  does  not satisfy the  test  because  it  takes  away  the  rights  to equality before  the law  and  equality  of  opportunity  in matters of  public employment, guaranteed under Arts. 14 and 16 and  was, therefore,  void and  unconstitutional. He  was dealing with  the case of Deputy Tahsildars in the Nizamabad District who  were promoted to the Selection Grade but could not draw  their pay  of Selection  Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of sub-r. (2) of r.5 of the Rules. The learned Judges observed that if FR 22(a) (ii) was applicable, and there was no reason  why it  should not be made applicable, the pay of the Deputy  Tahsildars in  the Selection  Grade could not be fixed at  less than  Rs. 500  which was  the minimum  of the time-scale  fixed   for  the   Selection  Grade   of  Deputy Tahsildars. According  to him,  sub-r. (2) of r.5 was per se discriminatory because  a Deputy  Tahsildar in the Selection Grade with  no seniors  promoted to a higher post could draw minimum pay  of such Selection Grade; but a Deputy Tahsildar in the  Selection  Grade  who  unfortunately  had  a  senior promoted to a higher post who drew a pay in that higher post which was  less than  the minimum  of the  scale of  pay  of Selection Grade  Deputy Tahsildar,  could not  draw more pay than that  drawn by  his senior,  although he was performing the same  duties and  discharging the  same responsibilities attached to  such Selection  Grade posts  for  which  higher emoluments had  been prescribed. The learned Judge observed: "To put  in the  words Chinnappa  Reddy, J.  it  amounts  to denial of the 936 principle of ’equal pay for equal work’ enshrined in Art. 39

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of the  Constitution as  one of  the Directive Principles of State Policy  and violates  Arts. 14  and 16 which guarantee equality before  the law and equal opportunity in the matter of public employment."      The appellant,  in the supplementary affidavit filed by the  Deputy  Secretary  to  Government  of  Andhra  Pradesh, Finance and  Planning: Department (Finance Wing) admits that the judgment  of Muktadar, J., in Krishnamurthy’s case supra had become  final because steps were not taken in time to go in appeal;  but, nonetheless,  asserts that since the matter before the  learned Judge  related to Selection Grade Deputy Tahsildars, it  was wrong  to suggest that all the judgments of the  High Court  involving a  similar question had become final, or  that the  Government had lost its right of appeal in other  similar matters.  We  are  really  at  a  loss  to appreciate this  attitude on  the part  of the Government in showing  scant  respect  to  the  High  Court  although  the judgments had  become final  and the  point involved was one and the  same. There  has been  total failure on the part of the Government to realise that the replacement by sub-r. (2) of r.5  of the Rules, of the executive instruction contained in the  U.O. Note,  does not  cure the  constitutional  vice inherent in the governmental action.      This is  nothing but  a plea  of justification  for the Government had,  in the  meanwhile, on  the strength  of the offending U.O.  Note  and  sub-r.  (2)  of  r.  5,  promoted thousands of  their employees  to Selection  Grade posts  in different departments,  but fixed their pay at a point lower than the  pay drawn  by their  seniors in  the  next  higher grade. There  have been  several judgments of the High Court and of  the Andhra  Pradesh Administrative  Tribunal on writ petitions filed by the persons so affected.      The Government,  instead of following a uniform policy, have refixed  the pay  of  some  of  the  employees  holding Selection Grade  posts, in compliance with the directions of the High  Court, but declined to do so in the case of others on the  pretext that  the re-fixation  would be done only in the case  of employees  who have secured such directions. It is impressed upon us that the Government wants a decision on merits as  the matter  involved a  question of principle. We were asked  to determine  the validity of sub-r. (2) of r.5. It was urged that the Government wants a clear pronouncement on the  extent of  their powers  in the  matter relating  to fixation of  pay of  a person  appointed  to  the  Selection Grade, in  accordance with  sub-r.(2) of r.5. We are afraid, the question  does not  arise in  these appeals. It is quite clear from  the judgments  under appeal that the validity of sub-r. (2) of r.5 was not in question. We are constrained to observe that if the Government wanted 937 to  question   the  correctness   of  the   judgment  in  D. Krishnamurthy’s case, the ’selection grade’ provided that if his senior in the higher finality which cannot now be upset. In that  judgment, Muktadar,  J., struck  down sub-r. (2) of r.5 as  ultra vires  the Government  as being  violative  of Arts. 14  and 16  of the  Constitution and  as being  not in conformity with  FR 22(a)(ii). The effect of the judgment of Muktadar, J., in Krishnamurthy’s case (supra) is that sub-r. (2) of r.5 is wiped out for all purposes and the re-fixation will have to be done as if sub-r. (2) of r. 5 never existed. The whole  attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.      In the  result,  the  appeals  and  the  special  leave petitions are  dismissed. There  shall be  no  order  as  to costs.

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N.V.K.                        Appeals & Petitions dismissed. 938