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PETITIONER: PRABHAT KIRAN MAITHANI & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT03/02/1977

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) KAILASAM, P.S.

CITATION:  1977 AIR 1553            1977 SCR  (2) 911  1977 SCC  (2) 365  CITATOR INFO :  RF         1992 SC1203  (11)

ACT:             Pay Scales and revised pay scales of computers shown  as         identical  in the Second Pay Commission Report--Right to  be         equated  as Research Assistants Grade 11 both in status  and         in pay is entirely within the sphere of the function of  the         Pay  Commission--Effect of the Report of the Third Pay  Com-         mission.             Constitution of India, 1950--Article 32 can be  resorted         to only for the enforcement of Fundamental  Rights--Equation         of posts is not a duty which the court under Art. 32 or  the         High Court under Art. 226 was competent to carry out.

HEADNOTE:             In the 1959 Second Pay Commission Report, the pay scales         and  the revised pay scales of the Computers were  shown  as         identical  with  that of the Research Assistants  Grade  II,         even  though the ’two posts were shown as separate  classes.         The  Third Pay Commission Report, however, showed  that  the         Computers not only belonged to a separate class of their own         but  received less pay than Research Assistants’  Grade  II.         The  petitioners  assailed this view under Art.  32  of  the         Constitution  as  violative of Articles 14 and  16  of   the         Constitution on the ground that they had a Fundamental Right         to  be equated both in status as well as in Day to  that  of         Research Assistants, Grade II.         Dismissing the petition the Court.             HELD:   (1)  Equation of posts and equation of  pay  are         matters  entirely within the sphere of the function  of  the         Pay  Commission.   These are questions  entirely  unfit  for         determination upon a petition for a writ for the enforcement         of  Fundamental  Rights.  It  requires,  firstly,   formula-         tion   of  correct criteria for  each  classification.  and,         secondly. the application of these criteria to facts  relat-         ing to the functions and the qualifications for each  class.         The Pay Commission had done this in the instant case  elabo-         rately,. [912 F, 913 B-C]             (2)  The Court, under Art. 32. neither has wider  powers         nor  can do it with greater facility than a High Court  can-         not,  when exercising its writ issuing  jurisdiction.   This         Court had already laid down that equation of posts is not  a

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       duty  which  the High Court was competent to  carry  out  in         proceedings under Art. 226. [913 D]         Union  of  India v. G.R. Prabhavalkar & Co. [1973]  (3)  SCR         714, referred             (3)  The  question,  whether there is or  there  is  not         enough material on record in a particular case to  establish         the basis of a particular discrimination is one of fact  for         the  determination  of which no hard and fast rules  can  be         laid  down.  A discrimination which involves the  invocation         of  Art. 14 is not necessarily covered by Art. 16.   In  the         instant case, even the material relied upon by the petition-         ers shows the Computers and Research Assistants Grade II are         classified separately, and, therefore, the validity of  that         classification  cannot be displaced by the kind of  evidence         relied on.  Until that classification is shown to be  unjus-         tified, no question of violating Article 16 can arise.         [913 G-H, 914 A]             Purshottam Lal and Ors. v. Union of India & Anr.  [1973]         (1) SCC 651 held inapplicable.

JUDGMENT:         ORIGINAL JURISDICTION: Writ Petition No. 43 of 1976.         S.C. Agarwal for the Petitioners.         912         L.N. Sinha, Sol Genl. and B. Datta for Respondents.         The Judgment of the Court was delivered by             BEG,  C.J.--The petitioners before us are  employees  of         the Forest Research Institute and Colleges Dehra Dun in  the         posts  designated  as Computers.   Their grievance  is  that         they should be  treated as Research Assistants Grade II  and         given the same scale of pay and other conditions of  service         as  are  applicable to Research Assistants  Grade  II.   The         respondents, Union of India and the President of the  Forest         Research Institute deny that the petitioners are entitled to         be treated as Research Assistants Grade II.  The petitioners         rely upon certain alleged admissions on behalf of the  oppo-         site parties, on certain classifications of Computers in the         past, prior to the recommendations the Third Pay  Commission         1973 as well as on the last mentioned report of the  Central         Pay  Commission.  Furthermore, learned counsel  has  invited         our  attention  to the case of Purshottam Lal and  Ors.  Vs.         Union of India and another [1973  (1)  S.C.C. 651] whereupon         a Writ Petition by Computers, they were shown as having been         given  identical scales of pay with the Research  Assistants         Grade  II.   This decision however, does not deal  with  any         controversy as to the correct classification of computers in         comparison  with Research Assistants Grade II.  All we  need         say  is  that this case deals with the  position  under  the         Report  of 1959 of’ the Second Pay Commission which  has  no         bearing on the position which follows from the Report of the         Third Pay Commission of 1973.  Moreover, it is evident  that         even at that time Research Assistants Grade II and  Computer         were shown as separate classes even though their pay  scales         and  the revised pay scales were shown as  identical.   Thus         the  claim of the petitioners is that this Court should  not         only  include  the Computers  amongst   Research  Assistants         Grade  II, which is not borne out even from  the  Report  of         the  Second Pay Commission, but go further and equate  their         pays, so that. even though they belong to different classes,         their scales of pay may be identical.  We are afraid this is         a  matter which lay entirely within the sphere of the  func-         tions of the Pay Commission. This Court cannot satisfactori-         ly  decide such disputed questions on the salender  material

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       on  which the learned counsel for the petitioner  relies  in         order  to  displace what appears to us to be,  prima  facie,         the  effect  of the Report of the Third  Pay  Commission  of         1973.   This report shows that Computers not only belong  to         a  separate class  of their own but received less  pay  than         Research Assistants of Grade II.             Learned Counsel for the petitioner’s tried to get out of         the report of the Third Pay Commission contained in  Chapter         XVII  relating to the Economists and Statisticians,  wherein         Computers  are mentioned and dealt with in paragraphs 32  to         34, by asserting that their case should be covered by either         Chapter XV, which deals with "Scientific Services" (specifi-         cally  mentioned  therein) or Chapter  XXI,  concerned  with         Ministry of Agriculture, where the Forest Research Institute         and  Colleges are mentioned in paragraphs 58  onwards.    It         seems to us to be erroneous to attempt to place Computers in         Chapter XV, which deals with specified "Scientific Services"         where Computers  are not mentioned, or in Chapter XXI, which         also does not mention Corn-         913         puters  at all.   Learned Counsel for the petitioners  tried         to  take advantage of the fact that paragraphs dealing  with         the Forest Research Institute in Chapter XXI do not  mention         Computers.    It  does not follow from this  that  Computers         necessarily belong to the  class into which the  petitioners         want  to get in without showing what the criteria and  func-         tions of persons entitled to be treated as Research  Assist-         ants  of Grade II are as compared with the  Computers   who,         prima facie belong to another class of workers dealing  with         statistics even though they may be in some way assisting  in         research  or  three may be some common  functions.   Indeed,         everyone working in a research institute could, in some way,         be  said to be assisting in research.  We think  that  these         are questions entirely unfit for determination upon a  peti-         tion  for a Writ for the enforcement of fundamental  rights.         It  requires: firstly, formulation of correct criteria   for         each classification; and, secondly, the application of these         criteria  to facts relating to the functions and  qualifica-         tions  for  each  class. The Pay Commission  had  done  this         elaborately.             The learned Solicitor General has invited our  attention         to  the case of Union of India v. G.R. Prabhavalkar  &  Ors.         reported in 1973 (3) S.C.R. 714, where this Court held  that         equation  of  posts is not a duty which the High  Court  was         competent to carry out in proceedings under Article 226.  We         do  not  think that we have wider powers or that we  can  do         with greater facility what a High Court cannot when exercis-         ing its writ issuing jurisdiction.             The  learned  counsel for the petitioners has  tried  to         take  us  at some length into the material on which  he  as-         sails the view taken by the opposite parties.  We are unable         to  agree  that, on the material placed before  us,  we  can         accept the petitioners’ interpretation of facts to which our         attention was drawn.  We are unable to consider other  mate-         rial  also to which our attention was attempted to be  drawn         because,  on the basis of the materials shown to us, we  are         satisfied that such matters are not fit for determination by         us on the kind of material sought to be placed before us.             Finally,  learned  counsel for the  petitioners  pleaded         that we may permit him to raise this matter before an Admin-         istrative or Service Tribunal if and when one is  constitut-         ed.   It is not necessary for us to give him any  permission         to do that. We may however observe that the petitioners  are         at  liberty to pursue other remedies, including those  which         may  be available to them if any such Tribunal is set up  in

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       future.  We want to make it clear that the question  whether         there  is  or there is not enough material on  record  in  a         particular  case  to  establish the basis  of  a  particular         discrimination is one of fact for the determination of which         no  hard and fast rules can, be laid down. Moreover, a  dis-         crimination, which involves the invocation of Article 14, is         not  necessary covered by Article 16.  We do not propose  to         discuss  here  the differences between Articles 14  and  16,         because  we  think that, even the material  relied  upon  on         behalf of the petitioners before us shows that Computers and         Research  Assistants Grade   II are  classified  separately.         The validity of that classification cannot,         914         we  think, be displaced by the kind of evidence relied  upon         on  behalf of the petitioners.  And, until that  classifica-         tion  is shown to  be unjustified, no question of  violating         Article 16 can arise.  We, therefore, leave the  petitioners         to other means of redress if they still feel aggrieved.             The  result  is that we dismiss the Writ  Petition,  but         make no order as to costs.         S.R.                                          Petition  dis-         missed.         915