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CASE NO.: Appeal (civil)  3134 of 1999

PETITIONER: M.P. Rural Agriculture Extension Officers Association

RESPONDENT: State of M.P. and Anr.

DATE OF JUDGMENT: 05/04/2004

BENCH: CJI, S.B. Sinha & S.H. Kapadia.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :  

       Applicability of doctrine of ’equal pay for equal work’  is involved in this appeal which arises out of a judgment  and order dated 13.4.1998 passed by the High Court of Madhya  Pradesh at Jabalpur in Writ Petition No.1550 of 1998.   

BACKGROUND FACTS:         The appellant herein is an Association of Rural  Agriculture Extension Officers (hereinafter referred to as  ’the Extension Officers’).  They were originally appointed  as Village Level Workers. They are matriculates.  The  services of the Village Level Workers were transferred to  the agriculture department of the State.  It framed rules in  the year 1972.  On or about 9.4.1981, the designation of the  Village Level Workers was changed to the Rural Agriculture  Extension Officer by the State Government.  The State of  Madhya Pradesh in exercise of the power conferred upon it  under the Proviso appended to Article 309 of the  Constitution of India made rules known as ’Madhya Pradesh  Revision of Pay Rules, 1983’.  Rule 3 of the said Rules  reads as under :

"3. Revised Scale of Pay.- The revised  scale of pay applicable to any post  carrying existing scale shown in columns  2 and 3 of Annexures  I and II  respectively shall be the corresponding  pay-scale shown in column 4 thereof  respect of that post."

       By reason of the provisions of the said Rules, two  different scales of pay were prescribed, namely, Rs.575- 880/- for non-graduates (Dying scale) and Rs.635-950/- for  fresh recruitment and for existing B.Sc./B.Sc. Agriculture.   By reason of an executive instruction dated 2/5.3.1984, the  decision of the State Government was communicated to the  Director, Agriculture, the relevant portion whereof is to  the following effect:

"Essential educational qualification  for the post of Rural Agricultural  Extension Officer being graduation (for  all departments) be fixed and all the  graduates so employed be paid by the

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pay-scale of Rs.635-950/-.  All those  graduate employees who were working to  the posts in all departments prior to  1.4.81 should be paid given a salary at  the rate of Rs.635-950/-.    

2.      *       *       *       *       *       *       *

3.      *       *       *       *       *       *       *

       This sanction endorsement vide  notification No.5/385/84/Dept.1/Four  dated 3.3.84 had been endorsed in the  records of the Accountant General’s  Office."

       Yet again by an amendment to the rule by a notification  dated 5.9.1984 in sub-clause (2) in Part B of the said Rules  the words "for new recruitments and for the qualification  B.Sc./B.Sc. (Agri.) pass" were replaced by the words "for  new recruitments and for graduates holding the degree".   The appellant herein filed a writ petition before the High  Court of Madhya Pradesh at Jabalpur praying, inter alia, for  the following reliefs :

"b)     That the pay scale of Rural  Agriculture Extension Officers be given  in accordance with the ratio given in  AIR 1984 Supreme Court 1221 and it  should be enhanced with the cadres  stated in the above paras by giving them  maximum pay scale, as has been given to  any one of those cadres."

       On constitution of the Madhya Pradesh State  Administrative Tribunal in the year 1988, however, the said  writ petition was transferred thereto.  The Tribunal gave  several opportunities to the respondents herein to file a  return but despite its failure to do so and despite holding  that a clear case of hostile discrimination has been made  out in view of the decision of this Court in Union of India  and Another vs. P.V. Hariharan and Another [(1997) 3 SCC  568] = [JT 1997 SC 569] held that the grievances of the  applicant regarding pay scale had to be dealt with by the  Pay Commission.  A writ petition filed thereagainst before  the Division Bench of the Madhya Pradesh High Court by the  appellant was also dismissed in view of the judgment of this  Court in Hariharan (supra) observing :

"...Moreso, there can always be a  classification on the basis of  graduation and non-graduation in the pay  scale.  Thus, we are satisfied that  there is no ground to interfere with the  order.  Hence, this petition is  dismissed."

SUBMISSIONS :

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       Dr. Rajeev Dhavan, learned Senior Counsel appearing on  behalf of the appellant, would submit that the Tribunal as  also the High Court went wrong in passing the impugned  judgments and orders insofar as they failed to take into  consideration that as by reason of the impugned rule no new  post or cadre was created, sanction of different pay scale  to the employees belonging to the same cadre was  impermissible.  The purported classification between the two  sets of employees whose posts are interchangeable and who  are carrying out the same work and have undergone the same  training could not have been placed in two different classes  only on the basis of educational qualification, the learned  Counsel submitted.  Dr. Dhavan would contend that as despite  having been given several opportunities, the respondents  herein failed to file return, they must be deemed to have  admitted the contentions raised by the appellant herein  before the Tribunal as correct and, thus, the Tribunal  misdirected itself in refusing to grant any relief to the  appellant despite arriving at a finding that the State has  committed a hostile discrimination against the appellant.   Educational qualification, Dr. Dhavan would urge, can be a  valid criteria only where new cadre is created and where no  minimum qualification was fixed at the time of initial  appointment, but in a situation where the employees  irrespective of their qualification had been performing the  same functions in the same grade, the doctrine of equal pay  for equal work would be applicable.

       Drawing our attention to the report of the Pay Revision  Commissions made on or about 13.10.1982 as also in the year  1999, the learned counsel would submit that the State should  have accepted the recommendations contained therein for  grant of scale of pay to all Extension Officers irrespective  of their educational qualification.  The learned counsel in  support of his aforementioned contention has placed strong  reliance on State of Mysore vs. B. Basavalingappa [(1986)  Supp. SCC 661], State of Madhya Pradesh and Another vs.  Pramod Bhartiya and Others [(1993) 1 SCC 539] and Shyam Babu  Verma and Others vs. Union of India and Others [(1994) 2 SCC  521].

       The learned counsel would contend that the doctrine of  classification should not be stretched too far and the same  cannot be a basis for justifying an arbitrary action on the  part of the State.  In support of the said contention,  reliance has been placed on Col. A.S. Iyer and Other vs. V.  Balasubramanyam and Others [(1980) 1 SCC 634].

       Ms. Geetanjali Mohar, learned counsel appearing on  behalf of the State of Chhattisgarh, on the other hand,  would urge that the possession of a higher educational  qualification has all along been held by this Court to be a  valid classification for the purpose of fixing the scale of  pay. Although the concerned employees had been performing  similar duties and functions, the same would not mean, it  was urged, that the employees cannot be granted different  scale of pay on the basis of their educational  qualification. Article 14 of the Constitution of India. Ms.  Mohan would argue, will have application only when a  discrimination is made between the persons who are  absolutely similarly situated and not otherwise.  Strong  reliance in this behalf has been placed on The State of

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Mysore and Another vs. P. Narasinga Rao [AIR 1968 SC 349] =  [1968 (1) SCR 467], Mewa Ram Kanojia vs. All India Institute  of Medical Sciences and Others [(1989) 2 SCC 235], V.  Markendeya and Others vs. State of Andhra Pradesh and Others  [(1989) 3 SCC 191] and a recent decision of this Court in  Government of West Bengal vs. Tarun K. Roy and Others [JT  2003 (9) SC 130].

ANALYSIS:         Applicability of doctrine of equal pay for equal work  on the touchstone of Article 39(d) read with Article 14 of  the Constitution of India will have to be considered for the  purpose of the present case on the premise that save and  except  disparity in educational qualification, the nature  of work performed by Extension Officers is identical and  they had undergone a similar training.  It is trite that the  Pay Commission on or about 13.10.1982 and in the year 1999  desired and recommended that the same scale of pay be given  to the Extension Officers irrespective of their educational  qualification, but it is not in dispute that the  recommendations of the Pay Commission were not accepted by  the State.  The relevant portion of the recommendations of  the Pay Commission and the Order of the State Government  thereupon respectively are as under :

" Sl. No. Report of  Pay Commission Chapter/Para  

Recommendations of Pay Commission Order of the State  Government 5. Twelve    17 & 18

(One) The present pay  scale of Gram Sewak  Rs.169-300 the said  pay scale was  recommended to be  revised at S. No. five  and this suggestion  was proposed that all  the Gram Sewak who  passed the 6th  months training course  should be upgraded to  pay scale of Rs.195- 330 as being revised  grade.  According to the  amendment in the  recruitment rules  of this department  the minimum  qualification  being graduation  with Science or  Agriculture and in

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future the Gram  Sewak be placed on  pay scale Rs.635- 950.  This pay  scale will be  given to Gram  Sewaks who were  only Agriculture  graduate or  Science graduate  but other gram  sewaks will be  given the revised  pay scale  Rs.  575-880 as  accepted pay  scale.                                                                                                 "

       We have noticed hereinbefore that the State issued an  executive instruction directing that not only the fresh  recruits shall be entitled to the pay scale of Rs.635-950/-,  but also the graduate officers working even prior to  1.4.1981 would be eligible therefor.  We have furthermore  noticed that by reason of an amendment in the rules made in  terms of notification dated 5.9.1984, the employees holding  a degree as also the new recruits were to be placed in the  said scale of pay.   

ISSUE :         The primal question which arises for consideration is  whether the aforementioned order of the State Government is  discriminatory in nature.

FINDINGS : The Pay Commissions are constituted for evaluating the  duties and functions of the employees and the nature thereof  vis-‘-vis the educational qualifications required therefor.   Although the Pay Commission is considered to be an expert  body, the State in its wisdom and in furtherance of a valid  policy decision may or may not accept its recommendations.   The State in exercise of its jurisdiction conferred upon it  by the proviso appended to Article 309 of the Constitution  of India can unilaterally make or amend the conditions of  service of its employees by framing appropriate rules.  The  State in terms of the said provision is also entitled to  give a retrospective effect thereto.  A policy decision had  been adopted by the State that the post of Extension  Officers shall be filled up only by graduates.  Such a  policy decision ex facie cannot be termed to be arbitrary or  irrational attracting the wrath of Article 14 of the  Constitution of India.  A dying scale was provided by the  State for the non-graduates.  Fresh recruitments were to be  made only from amongst the persons who held the requisite  educational qualification.  With a view to avoid any  discrimination between the new recruits and the serving  employees who possessed the same qualification, the State  cannot be said to have acted illegally in granting a higher  scale of pay also for the existing degree holders.

Article 14, it is trite, does not forbid a reasonable  classification.         Article 14 forbids class legislation but permits  reasonable classification subject to the conditions that it

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is based on an intelligible differentia and that the  differentia must have a rational relation to the object  sought to be achieved. [See Saurabh Chaudri and Ors. Vs.  Union of India and Ors. [2003 (9) SCALE 272]  

       Constitutional interpretation is  a difficult task.   Its concept varies from statute to statute, fact to fact,  situation to situation and subject matter to subject matter.   A classification based on educational qualification has been  applied by a Constitution Bench of this Court as far back as  in 1968 in P. Narasinga Rao (supra), wherein it was  observed:

"It is well settled that though Article  14 forbids class legislation, it does  not forbid reasonable classification for  the purpose of legislation. When any  impugned rule or statutory provision is  assailed on the ground that it  contravenes Article 14, its validity can  be sustained if two tests are satisfied.  The first test is that the  classification on which it is founded  must be based on an intelligible  differentia which distinguishes persons  or things grouped together from others  left out of the group, and the second  test is that the differentia in question  must have a reasonable relation to the  object sought to be achieved by the rule  or statutory provision in question. In  other words, there must be some rational  nexus between the basis of  classification and the object intended  to be achieved by the statute or the  rule. As we have already stated.  Articles 14 and 16 form part of the same  constitutional code of guarantees and  supplement each other. In other words,  Art. 16 is only an instance of the  application of the general rule of  equality laid down in Art. 14 and it  should be construed as such. Hence there  is no denial of equality of opportunity  unless the person who complains of  discrimination is equally situated with  the person or persons who are alleged to  have been favoured. Article 16 (1) does  not bar a reasonable classification of  employees or reasonable tests for their  selection."              

       The said dicta was applied by this Court in Mewa Ram  Kanojia (supra), stating : "5. While considering the question of  application of principle of ’Equal pay  for equal work’ it has to be borne in  mind that it is open to the State to  classify employees on the basis of  qualifications, duties and  responsibilities of the posts concerned.  If the classification has reasonable

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nexus with the objective sought to be  achieved, efficiency in the  administration, the State would be  justified in prescribing different pay  scale but if the classification does not  stand the test of reasonable nexus and  the classification is founded on unreal,  and unreasonable basis it would be  violative of Articles 14 and 16 of the  Constitution. Equality must be among the  equals. Unequal cannot claim equality."  

       The principle was reiterated in V. Markendeya (supra),  observing :  

"13. In view of the above discussion we  are of the opinion that where two  classes of employees perform identical  or similar duties and carrying out the  same functions with the same measure of  responsibility having same academic  qualification, they would be entitled to  equal pay. If the State denies them  equality in pay, its action would be  violative of Articles 14 and 16 of the  Constitution, and the court will strike  down the discrimination and grant relief  to the aggrieved employees. But before  such relief is granted the court must  consider and analyse the rationale  behind the State action in prescribing  two different scale of pay. If on an  analysis of the relevant rules, orders,  nature of duties, functions, measure of  responsibility, and educational  qualifications required for the relevant  posts, the court finds that the  classification made by the State in  giving different treatment to the two  classes of employees is founded on  rational basis having nexus with the  objects sought to be achieved, the  classification must be upheld. Principle  of equal pay for equal work is  applicable among equals, it cannot be  applied to unequals. Relief to an  aggrieved person seeking to enforce the  principles of equal pay for equal work  can be granted only after it is  demonstrated before the court that  invidious discrimination is practised by  the State in prescribing two different  scales for the two classes of employees  without there being any reasonable  classification for the same. If the  aggrieved employees fail to demonstrate  discrimination, the principle of equal  pay for equal work cannot be enforced by  court in abstract. The question what  scale should be provided to a particular  class of service must be left to the  executive and only when discrimination  is practised amongst the equals, the  court should intervene to undo the  wrong, and to ensure equality among the

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similarly placed employees. The court  however cannot prescribe equal scales of  pay for different class of employees."                          A Bench of three Judges in which two of us were parties  reiterated the same principle in Tarun K. Roy and Ors.  (supra).

       The aforementioned decisions are authorities for the  proposition that despite the fact that the employees have  been performing similar duties and functions and their posts  are interchangeable, a valid classification can be made on  the basis of their educational qualification.  The  observation of Krishna Iyer, J. in V. Balasubramanyam  (supra) although is interesting but it appears that the fact  of the matter involved therein did not warrant application  of the said principle.

       The view of Subba Rao, J. in Lachhman Dass vs. State of  Punjab and Others [AIR 1963 SC 222] was a minority view.   Venkatarama Aiyar, J. therein  speaking for the majority  held :   

"...The law is now well settled that  while Art. 14 prohibits discriminatory  legislation directed against one  individual or class of individuals, it  does not forbid reasonable  classification, and that for this  purpose even one person or group of  persons can be a class.  Professor  Willis says in his Constitutional Law  p.580 "a law applying to one person or  one class of persons is constitutional  if there is sufficient basis or reason  for it".  This statement of the law was  approved by this Court in Chiranjit Lal  Chowdhury vs. Union of India, 1950 SCR  869 : (AIR 1951 SC 41).  There the  question was whether a law providing for  the management and control by the  Government, of a named company, the  Sholapur Spinning & Weaving Company Ltd.  was bad as offending Art. 14.  It was  held that even a single Company might,  having regard to its features, be a  category in itself and that unless it  was shown that there were other  Companies similarly circumstanced, the  legislation must be presumed to be  constitutional and the attack under Art.  14 must fail.  In Ram Krishna Dalmia v.  S.R. Tendolkar, 1959 SCR 279 at p. 297 :  (AIR 1958 SC 538 at p. 547) this Court  again examined in great detail the scope  of Art. 14, and in enunciating the  principles applicable in deciding  whether a law is in contravention of  that Article observed :

       "that a law may be constitutional  even though it relates to a single  individual if on account of some special  circumstances pr reasons applicable to  him and not applicable to others that

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single individual may be treated as a  class by himself."

       Furthermore, as noticed hereinbefore, a valid  classification based on educational qualification for the  purpose of grant of pay has been upheld by the Constitution  Bench of this Court in P. Narasinga Rao (supra).        

       In B. Basavalingappa (supra), a two-Judge Bench of this  Court did not notice the earlier binding precedents of this  Court.  In fact one of them, K.N. Singh, J., as the learned  Chief Justice then was, was a party to the subsequent  decision in Mewa Ram Kanojia (supra).  In that case no  material was brought on records on the basis of which it  could be contended that there was any substantial difference  at that time between the two classifications although they  were described differently.  It was in that situation  observed :

"...It was argued that a diploma is a  higher qualification than a certificate.   But neither there is any curriculum on  record nor any other material to draw  that inference.  On the contrary this  circumstance that at the time when  respondent was recruited a diploma  holder or a certificate holder both were  entitled to be recruited as an  Instructor on the same pay scale  indicates that in those days the two  were considered to be alike."   

       In Pramod Bhartiya (supra), Jeevan Reddy, J.  categorically held that burden to prove that a  discrimination has been committed is upon the petitioners.   In that case petitioners failed to discharge their burden.          Yet again in Shyam Babu Verma (supra), N.P. Singh, J.  speaking for a three-Judge Bench  observed :

"...The nature of work may be more or  less the same but scale of pay may vary  based on academic qualification or  experience which justifies  classification.  The principle of ’equal  pay for equal work’     should not be  applied in a mechanical or casual  manner.  Classification made by a body  of experts after full study and analysis  of the work should not be disturbed  except for strong reasons which indicate  the classification made to be  unreasonable.  Inequality of the men in  different groups excludes applicability  of the principle of ’equal pay for equal  work’ to them..."                        True it may be that when recommendations are made by a  Pay Commission, evaluation of job must be held to have been  made but the same by itself may not be a ground to enforce  the recommendations by issuing a writ of or in the nature of  mandamus although the State did not accept the same in toto  and made rules to the contrary by evolving a policy decision  which cannot be said to arbitrary or discriminatory.

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       For the reasons aforementioned, we are of the opinion  that no case has been made for our interference with the  impugned judgment.  The appeal is dismissed accordingly.  No  costs.