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PETITIONER: INDER SINGH & ORS.

       Vs.

RESPONDENT: VYAS MUNI MISHRA & ORS.

DATE OF JUDGMENT14/08/1987

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) MISRA RANGNATH

CITATION:  1987 SCR  (3) 972        1987 SCC  Supl.  257  JT 1987 (3)   384        1987 SCALE  (2)306

ACT:     U.P.  Cane  Development (Fourth  Class)  Service  Rules, 1972/U.  P.  Ganna Paryavekshak (111) Service  Rules,  1972: Ganna Gram Sewaks/ Cane Supervisors--Posts carrying  differ- ent   duties,  basic   educational’   qualifications--Merger of--Whether permissible and legal.     Constitution of India, Arts. 226, 136, 39(d):  Principle of equal pay for equal work--Applicability of--Two different groups  of persons performing different  duties--Promotional post   having   higher  qualifications   than   the   feeder post--Jurisdiction of the court to order merger-Whetherprop- er.     Service  Law: Merger of two cadres into one or  bifurca- tion of a cadre--Within jurisdiction and authority of execu- tive government-Not of the court.

HEADNOTE:     The U.P. Cane Development (Fourth Class) Service  Rules, 1972 prescribe minimum qualification of High School Examina- tion for the post of Ganna Gram Sewak. The U.P. Ganna Parya- vekshak (III) Services Rules, 1972 lay down the basic quali- fication of Intermediate (Agriculture) or equivalent or High School  with two years’ Diploma in Agriculture for the  post of  Cane Supervisor, and provide for filling 50 per cent  of these  posts by promotion from amongst permanent Ganna  Gram Sewaks. The Cane Commissioner by his letter dated March  10, 1975  recommended to the State Government that  the  minimum educational  qualification for Ganna Gram Sewaks  should  be Intermediate.  No amendment, however, has been made  to  the said Rules.     The  duties that are to be performed by the  Ganna  Gram Sewaks  are preparation of progress report, survey  of  cane areas,  and development programme. The Cane Supervisors  are responsible for plant protection, inputs godown and  nurser- ies in the areas of Ganna Gram Sewaks. The respondent No. 1 flied a writ petition under Art. 226 of the 973 Constitution  praying for a writ of mandamus  directing  the State Government to merge the post of Ganna Gram Sewaks  and the Cane Supervisors into one cadre.     The  High Court took the view that although the  minimum

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educational  qualifications  required were High  School  for Ganna  Gram Sewaks and Intermediate in Agriculture for  Cane Supervisors,  since  1975 the minimum  qualification  became Intermediate  in Agriculture for both Ganna Gram Sewaks  and Cane Supervisors, that the nature of duties performed by the members  of these two categories of posts was the same,  and relying  upon the principle of equal pay for equal work,  as contained  in  Art. 39(d) of the Constitution,  allowed  the writ petition and directed the State Government to merge the said posts into one cadre of Ganna Sahayak.     The State, and the Cane Supervisors preferred appeals to this Court. Allowing the appeals,     HELD:  1.1 The High Court exceeded its  jurisdiction  in directing  the merger of the posts of Ganna Gram Sewaks  and Cane Supervisors. [977E]     1.2 The merger or bifurcation of a cadre is an executive act.  It is for the State to consider whether two groups  of persons  working under two distinct posts perform  the  same kind  of  duties  or not, and whether  in  implementing  the directive  principle,  as  contained in Art.  39(d)  of  the Constitution,  it is necessary to merge the two  posts  into one cadre or post. [980AB]     1.3  The principle of equal pay for equal work  requires on  the  face  of it that the work to be  performed  by  two groups of persons must be equal. The Court may in such cases direct equal pay by way of removing unreasonable discrimina- tion and treating the two groups, similarly situated, equal- ly. [977H; 980CD]     In  the instant case, the nature of the duties that  are performed by the members of the two categories of posts  are different. The Ganna Gram Sewaks are responsible for  prepa- ration  of  progress report, survey of. the cane  areas  and development  programme. On the other hand  Cane  Supervisors are  responsible  for plant protection,  inputs  godown  and nurseries in the areas of Ganna Gram Sewaks. The 974 minimum qualification required for each post is also differ- ent.  Both  of  them function more  or  less  independently. Furthermore,  the post of Cane Supervisor is  a  promotional post vis-a-vis the post of Ganna Gram Sewak. It will, there- fore,  be beyond the jurisdiction of the court to  implement the  principle of equal pay for equal work inasmuch as  such implementation  will practically result in the  amalgamation of the two posts. [978A, 979EF, 978B, 979G]     2.  Under the Rules the minimum  qualification  required for  the Ganna Gram Sewaks is High School or equivalent.  So long as the Rules are amended and the minimum  qualification is  not  enhanced to Intermediate in Agriculture,  the  Cane Development  Department  of the State  cannot  prescribe  or insist  on a minimum qualification of Intermediate in  Agri- culture.  The  High Court, therefore, was not  justified  in relying upon the letter of the Cane Commissioner dated March 10,  1975 in preference to the Rules framed’  under  Article 309 of the Constitution for taking the view that the minimum qualification  for that post has been Intermediate in  Agri- culture since 1975. [879CE, 978H]     3.  Article  39(d)  of the Constitution  lays  down  the directive principle of equal pay for equal work for both men and women. The directive principles contained in Part-IV  of the Constitution are not enforceable in any court of law. It is  a  constitutional goal that has to be  achieved  at  the instance of the State. [979H-980A]

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JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4115  and 4116 of 1985.     From  the  Judgment  and Order dated  12.4.1985  of  the Allahabad  High Court in Civil Misc. Writ Petn. No. 3441  of 1984. J.P.  Goyal, Rajesh for the Appellants in C.A. No. 41 15  of 1985.     Anil  Dev Singh, Mrs. S. Dikshit and Sudhir  Kulshreshta for the Appellants in C.A. No. 4116 of 1985. R. Ramachandran for the Respondents. The Judgment of the Court was delivered by     DUTT,  J.These  two appeals by special leave,  one  pre- ferred by the State of U.P. and the other by the Cane Super- visors of the Cane Development Department, U.P., are direct- ed against the judgment of 975 the  Allahabad High Court directing the State Government  to merge  the posts of Ganna Gram Sewaks and Ganna  Supervisors into the cadre of Ganna Sahayak in the pay scale of  Rs.400- 615 with effect from 1-7-1979.     In the hierarchy of field officers in the Cane  Develop- ment  Department, U.P., the post of Ganna Gram Sewak  is  at the bottom. The next higher post is the post of Cane  Super- visor.  Under  the Cane Development (Fourth  Class)  Service Rules, 1972 framed under Article 309 of the Constitution  of India,  the posts of Ganna Gram Sewaks are filled by  direct recruitment and the minimum qualification prescribed  there- for  by Rule 9(3) of the said Rules is that a candidate  for recruitment in the post of Ganna Gram Sewak must have passed the  High School Examination from the Board of High  Schools and  Intermediate Education, U.P. or an equivalent  examina- tion  and he must know Hindi in Devnagri script.  Under  the Uttar Pradesh Ganna Paryavekshak (III) Service Rules,  1978, also framed under Article 309 of the Constitution of  India, 50  per  cent  of the posts of Cane Supervisors  are  to  be filled  by direct recruitment and the remaining 50 per  cent by  promotion on the basis of seniority from amongst  perma- nent  Ganna Gram Sewaks of the concerned region.  The  basic qualification for the post of Cane Supervisor is  Intermedi- ate  (Agriculture)  or equivalent or High  School  with  two years  Diploma  in Agriculture. The duties that  are  to  be performed  by  the  Ganna Gram  Sewaks  are  preparation  of progress  report, survey of the cane areas  and  development programmes.  The Cane Supervisors are responsible for  plant protection,  inputs  godown and nurseries in  the  areas  of Ganna Gram Sewaks.     The  State of U.P. appointed a Second Pay Commission  in the year 1979. The Ganna Gram Sewaks submitted a representa- tion to the Commission demanding that since their qualifica- tions  were  similar to those of Cane Supervisors  and  they performed the same kind of duties, they should get the  same pay  scale as that of the Cane Supervisors. It appears  that on  the suggestion of the Pay Commission, the State  Govern- ment  appointed a Task Force Committee. The Task Force  Com- mittee in its report recommended the merger of the posts  of Ganna Gram Sewaks and Cane Supervisors into one group to  be designated as Ganna Sahayaks and allotted an equal field  of operation.  It was observed that the merger  being  effected would  satisfy the demand of the Ganna Gram Sewaks  for  the equalisation of their pay scale with that of the Cane Super- visors.  The said recommendation was made by the Task  Force Committee on the ground that there was no special difference between these two categories of posts in regard to

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976 the  duties performed by the members of each  category.  The Second Pay Commission, however, did not accept the recommen- dation  made by the Task Force Committee for the  merger  of these  two categories of posts .into one  category,  namely, Ganna  Sahayak. After taking into consideration the  minimum academic  qualification  and the nature of duties  for  each category, the Second Pay Commission, inter alia, recommended the revision of the pay scales as follows:- CANE DEVELOPMENT DEPARTMENT S. No. Name of Post       Pay Scale                           Existing       Proposed 46.   Cane Supervisor/    230-385     400-615       Seed Asstt.         Ordinary    Ordinary                           Grade       Grade                          250-425      510-675                         (Selection    After                         Grade)        After 10 years                                       of service                                       Selection Grade                                       ( 15% Selection                                        Grade on the                                        post of                                        Supervisor) 47.   Ganna Gram Sewak   185-265     325-495                          Ordinary    Ordinary                          Grade       Grade                          200-320      400-540                          Selection    After 15 years                          Grade        of service                                       Selection Grade                                       on 15% posts.     The  recommendation  of the Second  Pay  Commission  was considered  by the Review Committee and, thereafter, by  the Cabinet  Sub-Committee. There is a dispute between the  par- ties  as to whether the Cabinet Sub-Committee  had  accepted the recommendation made by the Task Force Committee. Be that as it may, the State Govern- 977 ment accepted the recommendations of the Second Pay  Commis- sion  only with a slight modification that instead of a  pay scale  of  Rs.325-495  for Ganna Gram Sewaks,  it  would  be Rs.330-495.     One of the Ganna Gram Sewaks, Shri Vyas Muni Mishra, the respondent No. 1, filed a writ petition before the Allahabad High  Court  praying for a writ of  mandamus  directing  the State Government to merge the posts of Ganna Gram Sewaks and Cane Supervisors into one cadre of ’Ganna Sahayak’. The High Court  took the view that although the  minimum  educational qualifications  required  were High School  for  Ganna  Gram Sewaks and Intermediate in Agriculture for Cane Supervisors, since  1975  the minimum qualification for both  Ganna  Gram Sewaks and Cane Supervisors became Intermediate in  Agricul- ture.  Further,  the  High Court was of the  view  that  the nature  of  duties  performed by the members  of  these  two categories of posts was the same. Accordingly, relying  upon the  principle of equal pay for equal work, as contained  in Article  39(d) of the Constitution, the High  Court  allowed the writ petition and directed the State Government to merge the  posts of Ganna Gram Sewak and that of  Cane  Supervisor into  one post as Ganna Sahayak in the pay scale of  Rs.400- 615 with effect from July 1, 1979. The State of U.P. and the Cane Supervisors being aggrieved by the judgment of the High Court have preferred the above appeals.     At the outset it may be said that the High Court exceed-

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ed  its  jurisdiction  in directing the merger  of  the  two posts.  It  may  be that the Task Force  Committee  and  the Review Committee had recommended for the merger, but it  was for  the  State Government to consider whether  such  merger should be made or not. The State Government after considera- tion  of the relevant reports and  recommendations  accepted the  recommendation of the Second Pay Commission  only  with regard  to the revision of the pay scale of the  Ganna  Gram Sewaks with the slight modification by an increase of Rs.  5 at  the  initial  stage of the recommended  pay  scale.  The question whether two posts should be merged into one or  not is  absolutely within the jurisdiction and authority of  the Executive Government. However much the High Court was influ- enced by the principle of equal pay for equal work for  both men and women as contained in Article 39(d) of the Constitu- tion,  the  High Court was not justified  in  exceeding  its jurisdiction for giving effect to the said doctrine.     The  principle of equal pay for equal work  requires  on the  face of it that the work to be performed by two  groups of persons must be 978 equal. It has been already noticed that the duties that  had to be performed by the Ganna Gram Sewaks are preparation  of progress  report, survey of the cane areas  and  development programmes.  On  the other hand, the  Cane  Supervisors  are responsible for plant protection, inputs godown and  nurser- ies  in the areas of Ganna Gram Sewaks. Thus the  nature  of duties that are performed by the members of these two  cate- gories  of posts is different. It has been observed  by  the Second  Pay Commission that the Department has so fixed  the duties of the two functionaries that both of them now  func- tion  more  or less independently. The High  Court  did  not discuss  in detail as to whether the Ganna Gram  Sewaks  and the Cane Supervisors perform the same duties. The High Court has  only  referred to an observation in the report  of  the Task Force Committee that there were not much differences in the duties performed by these two categories of officers. As has  been stated already, the Second Pay Commission did  not accept  the recommendation of the Task Force  Committee  for the  merger of the two posts into one. It is true  that  the Cane  Supervisors are not doing any supervision of the  work of  the  Ganna  Gram Sewaks, but in view of  the  nature  of duties  performed by both, as mentioned above, it is  diffi- cult  to hold that both perform the same kind of duties.  We have also looked into the reports of the Task Force  Commit- tee  and  the Review Committee. In our  opinion,  these  two Committees have not properly dealt with the nature of duties performed  by  the Ganna Gram Sewaks and  Cane  Supervisors, although  both these Committees have recommended the  merger of the two posts. As soon as, therefore, it is held that the two  groups of persons do not perform the same kind  of  du- ties,  the  question of equal pay for equal  work  does  not arise.     In directing merger of the two posts, the High Court has greatly  relied  upon  the fact that  although  the  minimum educational  qualification  for Ganna Gram Sewaks  was  High School, since 1975 the minimum educational qualification for the Ganna Gram Sewaks has been Intermediate in  Agriculture. In  other  words, according to the High  Court  the  minimum educational  qualification required for both these posts  is Intermediate in Agriculture. We have already referred to the Rules  framed  under Article 309 of the  Constitution  under which the minimum qualification for the posts of Ganna  Gram Sewaks  has  been prescribed as High  School  or  equivalent examination  and  for the Cane Supervisors  as  Intermediate

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(Agriculture)  or equivalent or High School with two  years’ Diploma  in  Agriculture.  The  minimum  qualifications,  as prescribed,  have not yet been changed by the  amendment  of the  said Rules. In entertaining the view that  the  minimum qualification for the Ganna Gram Sewaks has been since  1975 Intermediate in  979 Agriculture,  the  High  Court has placed  reliance  upon  a letter  dated March 10, 1975 addressed by the  Cane  Commis- sioner,  U.P,,  to the Deputy  Secretary,  Cane  Development Department, Government of U.P. In that letter, it was recom- mended  that the minimum educational qualification  for  the Ganna Gram Sewaks should be Intermediate in accordance  with the  proposal of the Ganna Gram Sewaks’ Union, U.P. It  was, accordingly, requested by the Cane Commissioner in the  said letter that the Government might consider the minimum quali- fication as recommended. It is the case of the State of U.P. that  the said letter was issued-in connection with 600  new posts of Ganna Gram Sewaks to be created under non-statutory bodies, namely, Sakkar Nidhi and Ganna Board. It is contend- ed that these 600 posts have nothing to do with the posts of Ganna  Gram Sewaks under the Cane Development Department  of the State of U.P. In our opinion, the High Court should  not have  placed any reliance upon any such recommendation  made by the Cane Commissioner, when, under the Rules framed under Article  309 of the Constitution, the minimum  qualification required for the Ganna Gram Sewaks is High School or equiva- lent.  So  long  as the Rules are amended  and  the  minimum qualification  is not enhanced to Intermediate  in  Agricul- ture,  the  Cane Development Department  of  the  Government cannot  prescribe  or insist on a minimum  qualification  of Intermediate in Agriculture. The Second Pay Commission could not also equate the posts of Ganna Gram Sewaks with that  of Cane  Supervisors on the ground that the minimum  qualifica- tion  for the two posts are different. The High  Court  was, therefore. not justified in relying upon the said letter  of the  Cane  Commissioner in preference to  the  Rules  framed under  Article 309 of the Constitution. In our view,  there- fore, not only the nature of duties attached to each post is different,  but also the minimum qualification required  for each post is also different.     As  stated earlier, the posts of Ganna Gram  Sewaks  are filled  by direct recruitment. So far as .the posts of  Cane Supervisors  are  concerned,  50 per cent of  the  same  are filled by promotion from the posts of Ganna Gram Sewaks  and the remaining 50 per cent are filled by direct  recruitment. Thus,  the  post of Cane Supervisor is  a  promotional  post vis-a-vis  the post of Ganna Gram Sewak. In our view  where, as  in  the instant case, of the two posts,  one  being  the promotional  post  and the other being the feeder  post,  it will  be beyond the jurisdiction of the Court  to  implement the  principle of equal pay for equal work inasmuch as  such implementation will practically result in the amalgmation of the two posts leading to great administrative  difficulties. Article  39(d) of the Constitution lays down  the  Directive Principle of 980 equal pay for equal work for both men and women. The  direc- tive principles contained in Part-IV of the Constitution are not enforceable in any court of law. It is a  constitutional goal  that has to be achieved at the instance of the  State. Merger  or  bifurcation of a cadre is an executive  act  and normally  the  Court does not deal with it. It  is  for  the State  to  consider whether two groups  of  persons  working under two distinct posts perform the same kind of duties  or

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not and whether in implementing the directive principle,  as contained in Article 39(d) of the Constitution, it is neces- sary to merge these two posts into one cadre or post. If the State  Government is of the view that it is  necessary  that there should be a merger of the two posts into one post, the State Government has to take steps in that regard by framing proper rules with regard to seniority, promotions, etc. But, when two groups of persons are in the same or similar  posts performing  same kind of work, either in the same or in  the different Government departments, the Court may in  suitable cases  direct  equal  pay by way  of  removing  unreasonable discrimination and treating the two groups, similarly  situ- ated, equally. In the facts and circumstances of the instant case, we are of the view that the High Court was not  justi- fied  in  directing a merger of the two posts,  namely,  the posts of Ganna Gram Sewaks and Cane Supervisors.     For the reasons aforesaid, the impugned judgment of  the High Court is set aside and the writ petition is  dismissed. Both these appeals are allowed. There is, however, no  order as to costs.     This  judgment, however, will not prevent the  State  of U.P. from considering the merger of these two posts and  the consequent equalisation of pay. P.S.S,                                               Appeals allowed. 981