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CASE NO.: Appeal (civil)  6588 of 2003

PETITIONER: U.P. State Sugar Corporation Ltd. & Anr.

RESPONDENT: Sant Raj Singh & Ors.

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

WITH CIVIL APPEAL NO. 8237-8238 of 2003 & CIVIL APPEAL NO\005\0052656 \005\005.OF 2006 [@ S.L.P. (C) No. 18327 of 2004]

S.B. Sinha, J  :

       Leave granted in S.L.P.

       Whether educational qualification can be considered to be a relevant  criteria for the purpose of payment of wages is the question involved in these  appeals which arise out of a judgment and order dated 11.12.2002 passed by  a Division Bench of the High Court of Uttaranchal at Nainital in C.M.W.P.  No. 235(M/S) of 2001allowing the writ petition filed by the Respondent  herein and an order dated 13.5.2003 refusing to review the said order.

       Doiwala Sugar Company Limited (Company) was having a sugar mill  at Maholi.  There exists a post of Assistant Laboratory Incharge in all the  sugar mills.  The post carried certain grades. The wages of the employees in  the sugar factory in the State of Uttar Pradesh used to be governed by the  terms of awards of the Wage Board appointed by the Government of India  from time to time.  An award was made by U.P. Sugar Wage Board in the  year 1970 prescribing different scales of pay for different categories of  employees working in all the Vaccum Pan Sugar Factories in the State of  Uttar Pradesh.  Educational qualifications were laid down as criteria for  classifying the employees in different grades, which are as under:

(a)     for the post of Laboratory Incharge Supervisory A1, - Degree in  Science with Physics and Chemistry and Mathematics as subjects  and Associate Membership of National Sugar Institute, Kanpur or  any other equivalent qualification. (b)     for the post of Laboratory Incharge, Supervisory A-II, \026 Degree in  Science with Physics and Chemistry as subjects and at least two  years practical experience in the sugar industry.

       However, it was prescribed that in the event the laboratory Incharge,  i.e., Supervisory Grade A-II were having the educational  qualification of   less than a Degree, he would be placed in Supervisory B Grade.

       The Legislature of the State of U.P. enacted the Uttar Pradesh Sugar  Undertakings (Acquisition) Act, 1971 to provide, in the interest of the  general public, for the acquisition and transfer of certain sugar undertakings  and for matters connected therewith or incidental thereto.  

       "Appointed Day" in the said Act was defined to be 3rd July, 1971.  In  terms of Section 3 of the said Act, on the appointed day, every scheduled

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undertaking shall, by reason thereof, stand and be deemed to have stood  transferred to and vest and be deemed to have vested absolutely in the U.P.  State Sugar Corporation Limited (for short "the Corporation").  Section 16 of  the said Act provided that every person working in any of such sugar mills  which stood vested under the said Act shall on and from the date of such  acquisition become an employee of the Corporation and shall hold his office  or service therein by the same tenure, at the same remuneration and upon the  same terms and conditions and with same rights and privileges as to pension,  gratuity and other matters as he would have held the same on the appointed  day if the undertaking had not been transferred to and vested in the  Corporation and shall continue to do so until his employment in the  Corporation is terminated or until his remuneration or other terms and  conditions of services or revised or altered by the Corporation under or in  pursuance of any law or in accordance with any provision which for the time  being governs his service.

       The provisions of the said Act, however, were implemented in phases

       On or about 3.2.1984, an order was issued by the Corporation in terms  whereof certain categories of employees like Assistant Engineers,  Manufacturing Chemists and Laboratory Incharges posted in various units of  the Corporation who had been drawing salary in Supervisory Grade A-I and  A-II Grade of the Wage Board of the Sugar Industry were placed in the  Corporation scale of pay with effect from 1.2.1984.  The scale of pay for  such Laboratory Incharge was fixed at Rs. 550-1200 for those who had  earlier been working on the initial pay scale of Rs. 375-1000 in terms of the  recommendations of the Wage Board.  However, those who have been  working in the pay scale of Rs. 355-755 were put in the scale of Rs. 500- 1000.  A revision of pay was effected by the Corporation by a notification  dated 23.10.1984 in terms whereof those laboratory incharges who had  earlier been put in the pay scale of Rs. 550-1200 were put in the pay scale of  Rs. 900-1770 and those who had been placed in the pay scale of Rs. 500- 1000 were placed in the pay scale of Rs. 770-1600.  It had, however, been  clarified that pay scale of Rs. 900-1770 would be admissible only to those  laboratory incharges who possessed B.Sc. Degree with Post Graduate  Diploma of Sugar Technology from National Sugar Institute and all other  laboratory incharges under Supervisory A-I or A-II would be entitled for the  Corporation revised pay scale of Rs. 770-1600.

       Maholi Sugar Mill belonging to the Company vested in the  Corporation with effect from 28.10.1984.  The First Respondent herein was  appointed in the Sugar Mill on 1.3.1981.  He was not possessed of the  qualification of  Degree in Science.  His services were taken over in terms of  the provisions of the Act with effect from the date of nationalisation of the  sugar mill.  It is not in dispute that his scale of pay stood protected in terms  of Section 16 of the Act.   

       The First Respondent being in Supervisory Grade-B at the time of  acquisition of the factory was, thus, not entitled to be placed in the  Corporation pay scale.  He was, therefore, continued to be paid in the pay  scale prescribed by the Sugar Wage Board even after 28.10.1984.

       One B.P. Srivastava, working in another mill which also vested in the  Corporation, had been getting A-II Grade before nationalisation thereof.  His  pay was protected.   

With a view to remove certain anomalies allegedly a Selection  Committee was constituted by the Corporation on or about 28.3.1985.  The  Committee for the said purpose called seven candidates for interview.  It is  stated that the basis for calling the said candidates for interview is not  known.  Shri Shyam Sunder Shukla was also one of the candidates called for  interview.  By reason of  recommendations made by the said Committee,  four employees out of the seven called for interview including Shri Shukla  were placed in the revised pay scale of Rs. 770-1600 meant for laboratory  incharge in the Corporation.  Shri Shukla was placed in the Corporation

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scale in Bijnore unit of the Corporation.  The First Respondent herein  thereafter was transferred to a unit of the Corporation at Rohana Kalan.  He  continued to be placed in the Supervisory B-Grade and had been drawing  salary in the prescribed scale of pay therefor.  The Third Sugar Wage Board  was constituted.  It made its recommendations on 31.1.1991.  The said  recommendations were given retrospective effect and retroactive operation  from 29.12.1989.  In terms of the said recommendations, category B-Grade  was not prescribed.  The First Respondent was also placed in Supervisory A- Grade.  He was, however, not placed in the Corporation Scale of Pay.  He  was transferred from the said Rohana Kalan Unit to Maholi Unit again.   

In the year 1996, he filed a writ petition before the High Court of  Allahabad inter alia praying therein for grant of scale of pay which was  being paid to Shri B.P. Srivastava  and Shri Shukla.  The State of  Uttaranchal having been created, the said writ petition was transferred to the  High Court of Uttaranchal.  By reason of the impugned order, the High  Court directed the Appellants to pay similar pay scale of Rs. 2000-3500 from  the date from which Shri B.P. Srivastava and Shri Shyam Sunder Shukla  were being paid.  Civil Appeal Nos. 6588 and 8237 of 2003 have been filed  against the said order.  An application for review was filed which was  rejected by an order dated 13.5.2003.  Civil Appeal No. 8238 and Civil  Appeal arising out of SLP (C) No. 18327 of 2004 have been filed against the  said order.

       The learned counsel appearing on behalf of the Appellant submitted  that the High Court committed a manifest error insofar as it failed to take  into consideration that the cases of both Shri B.P. Srivastava and Shri Shyam  Sunder Shukla stood absolutely on different footings.  It was contended so  far as the case of Shri B.P. Srivastava is concerned, he having already been  drawing a higher scale of pay, the same was required to be protected in terms  of Section 16 of the Act and insofar as the case of the said Shri Shyam  Sunder Shukla is concerned, he was placed on a higher scale of pay by a  Committee.  It was submitted that as the First Respondent was not  possessing the requisite qualification, he could not have been placed on a  higher scale of pay.            Mr. Dinesh Dwivedi, learned senior counsel appearing on behalf of  the First Respondent, urged that when the First Respondent entered into  service, no such qualification was prescribed.  The laboratory incharges  performed the same nature of duty and in that view of the matter the  educational qualification prescribed for the said post was wholly immaterial.   The learned counsel urged that the Wage Board having made a distinction in  the scales of pay based on educational qualification and the same having  been withdrawn by the same authority which came into force with effect  from 29.12.1989, at least from the said date the First Respondent should  have been placed in the Corporation Scale of Pay.   

       Our attention was also drawn to the fact that the Committee purported  to have been appointed by the Corporation for reasons best known to it  called only seven candidates for interview.  The Corporation has not  disclosed as to why the case of the First Respondent had not been considered  by the said Committee.  The case of Shri Shyam Sunder Shukla, thus, could  not have been considered by the said Committee and in that view of the  matter as he although is not possessed of a Degree, he having been placed in  the Corporation Scale of Pay, there was absolutely no reason as to why he  should be discriminated.

       The doctrine of equal pay for equal work, as adumbrated under Article  39(d) of the Constitution of India read with Article 14 thereof, cannot be  applied in a vacuum.  The constitutional scheme postulates equal pay for  equal work for those who are equally placed in all respects.  Possession of a  higher qualification has all along been treated by this Court to be a valid  basis for classification  of two categories of employees.   

       In The State of Jammu and Kashmir v. Shri Triloki Nath Khosa and

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Others [(1974) 1 SCC 19], the validity of such a classification came to be  considered before this Court.  Chandrachud, J., (as the learned Chief Justice  then was), opined:

"\005Formal education may not always produce  excellence but a classification founded on variant  educational qualifications is, for purposes of promotion  to the post of an Executive Engineer, to say the least,  not unjust on the face of it and the onus therefore cannot  shift from where it originally lay."

       Krishna Iyer, J. supplemented stating:

"\005The social meaning of Articles 14 to 16 is neither  dull uniformity nor specious "talentism". It is a process  of producing quality out of larger areas of equality  extending better facilities to the latent capabilities of the  lowly. It is not a methodology of substitution of  pervasive and slovenly medicority for activist and  intelligent \027 but not snobbish and uncommitted \027  cadres. However, if the State uses classification  casuistically for salvaging status and elitism, the point  of no return is reached for Articles 14 to 16 and the  Court’s jurisdiction awakens to deaden such  manoeuvres. The soul of Article 16 is the promotion of  the common man’s capabilities, over-powering  environmental adversities and opening up full  opportunities to develop in official life without  succumbing to the sophistic argument of the elite that  talent is the privilege of the few and they must rule,  wriggling out of the democratic imperative of Articles  14 and 16 by the theory of classified equality which at  its worst degenerates into class domination."

       In State of Madhya Pradesh and Another v. Pramod Bhartiya and  Others [(1993) 1 SCC 539] referring to the provisions of Section 2(h) of the  Equal Remuneration Act, 1976, this Court stated:

"13. It would be evident from this definition that the  stress is upon the similarity of skill, effort and  responsibility when performed under similar conditions.  Further, as pointed out by Mukharji, J. (as he then was)  in Federation of All India Customs and Excise  Stenographers the quality of work may vary from post  to post. It may vary from institution to institution. We  cannot ignore or overlook this reality. It is not a matter  of assumption but one of proof. The respondents  (original petitioners) have failed to establish that their  duties, responsibilities and functions are similar to those  of the non-technical lecturers in Technical Colleges.  They have also failed to establish that the distinction  between their scale of pay and that of non-technical  lecturers working in Technical Schools is either  irrational and that it has no basis, or that it is vitiated by  mala fides, either in law or in fact (see the approach  adopted in Federation case)\005"

       Yet again in Shyam Babu Verma and Others v. Union of India and  Others [(1994) 2 SCC 521] a 3-Judge Bench of this Court opined:

"\005The nature of work may be more or less the same  but scale of pay may vary based on academic

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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\005."

       In Government of W.B. v. Tarun K. Roy [(2004) 1 SCC 347], it was  clearly laid down that the holders of a higher qualification can be treated to  be a separate class, holding :

"20. Question of violation of Article 14 of the  Constitution of India on the part of the State would arise  only if the persons are similarly placed. Equality clause  contained in Article 14, in other words, will have no  application where the persons are not similarly situated  or when there is a valid classification based on a  reasonable differentia\005."

       The said decision has been noticed by another Bench of this Court in  M.P. Rural Agriculture Extension Officers Association v. State of M.P. and  Another [(2004) 4 SCC 646] stating:

"22. 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.

       The First Respondent admittedly did not possess the requisite  qualification.  He merely claimed a higher scale of pay only because Shri  B.P. Srivastava and Shri Shyam Sunder Shukla had been paid.  It has not  been disputed before us that the case of Shri Srivastava stood on different  footing and his scale of pay had to be protected in terms of Section 16 of the  Act.  So far as Shri Shyam Sunder Shukla is concerned, we may proceed on  the basis that the Corporation took a wrong decision.  The said decision,  however, was not questioned by the First Respondent before the High Court.   No foundational facts had been placed before the High Court in relation  thereto.  We would not like to enter into the controversy as to whether his  case could have been considered by the Committee or on what basis the  Committee considered the cases of seven candidates and granted higher  scales of pay to four candidates as the validity thereof is not in question.   Assuming that the Corporation was wrong, the same by itself would not  clothe the First Respondent even legal right to claim a higher scale of pay.   On what basis the Selection Committee selected four employees out of the  seven is not known.  Three persons admittedly were not selected.  If the plea  put forward by the Respondent is accepted, these employees also would be  entitled to the same scale of pay as given to the said Shri Shukla, although  they have been found to be not fit therefor.  Educational qualification was  made the basis for a valid classification in the matter of payment of salary in  a particular scale of pay by the Wage Board itself.  Only in the year 1989,  such a classification was obliterated.  The First Respondent had been granted  the benefit of the recommendations of the Third Wage Board also.  It was a  matter of policy decision for the Corporation to consider as to whether a  particular category of employees should be taken outside the purview of the  pay scales  recommended by the Wage Board and place them in a higher  scale of pay.  We, therefore, cannot accept the contention of Shri Dwivedi  that only because no such qualification was prescribed at the time of  recruitment, the classification made on that basis would be bad in law.  Even  otherwise the said contention is not correct as scale of pay was determined  by the award of the Wage Board.

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       Yet again the validity or otherwise of the said policy decision is not in  question.  The said policy decision has been taken as far back in 1984.  It  cannot be assumed that the First Respondent was not aware of the same.

       Despite knowledge, he did not question the validity of such a policy  decision.  The matter relating to grant of scale of pay may be based upon a  policy decision of the State.

       In State of Orissa and Others v. Balaram Sahu and Others [(2003) 1  SCC 250], this Court opined:

"\005Though "equal pay for equal work" is considered to  be a concomitant of Article 14 as much as "equal pay  for unequal work" will also be a negation of that right,  equal pay would depend upon not only the nature or the  volume of work, but also on the qualitative difference as  regards reliability and responsibility as well and though  the functions may be the same, but the responsibilities  do make a real and substantial difference."

       Yet again in Union of India and Another v. International Trading Co.  and Another[(2003) 5 SCC 437], this Court opined:

"\005A party cannot claim that since something wrong  has been done in another case direction should be given  for doing another wrong. It would not be setting a  wrong right, but would be perpetuating another wrong.  In such matters there is no discrimination involved. The  concept of equal treatment on the logic of Article 14 of  the Constitution of India (in short "the Constitution")  cannot be pressed into service in such cases. What the  concept of equal treatment presupposes is existence of  similar legal foothold. It does not countenance  repetition of a wrong action to bring both wrongs on a  par. Even if hypothetically it is accepted that a wrong  has been committed in some other cases by introducing  a concept of negative equality the respondents cannot  strengthen their case\005"

       Moreover, Article 14 has a positive concept.  Nobody can claim  equality in illegality.

       For the foregoing reasons, we are of the opinion that the impugned  judgment cannot be sustained which is set aside accordingly.  If any amount  has been paid to the First Respondent, pursuant to or in furtherance of the  judgment of the High Court, the same may be recovered from his salary in  twelve equal monthly instalments.   

These appeals are allowed accordingly.  The parties shall pay and bear  their own costs of the appeals.