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PETITIONER: P. SAVITA S/O SHRI P.L. SAVITA

       Vs.

RESPONDENT: UNION OF INDIA, MINISTRY OF DEFENCE (DEPARTMENT OF DEFENCE P

DATE OF JUDGMENT01/05/1985

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) SEN, A.P. (J)

CITATION:  1985 AIR 1124            1985 SCR  Supl. (1) 101  1985 SCC  Supl.   94     1985 SCALE  (1)1091  CITATOR INFO :  D          1988 SC1291  (9)  R          1989 SC  19  (26)  RF         1989 SC  30  (3)  F          1989 SC1256  (4)  C          1989 SC1308  (8,10)

ACT:      Constitution of  India, Article  14 and 39(d)-Equal pay for equal  work-Senior Draughtsmen  doing the  same work and discharging similar  functions and duties-Clarification into two groups  on the basis of seniority with two different pay scales-Whether discriminatory.      Civil Service-Government  servant doing  some work  and discharging similar duties-Classification based on seniority with two different pay scales-Whether legal and justified.

HEADNOTE:      Senior Draughtsmen  in the Ordnance Factories under the Ministry  of   Defence  are  either  directly  recruited  or promoted from  the post  Draughtsmen. At  all relevant times all   the    Senior   Draughtsmen   throughout   the   above establishments were  drawing the  same pay scale of Rs. 205- 280. While  revising the  pay-scale of various categories of employees, the  Third Pay  Commission recommended  that  the Draughtsmen should  be placed  in the  scale of Rs. 330-560. The  Pay   Commission  also   recommended  that  the  Senior Draughtsmen should  be divided  into two groups and half the number of posts of Draughtsmen in the above organisations on the present  pay-scale of  Rs.  205-280  be  placed  in  the revised scale  of Rs.  425-700 on the basis of seniority and the remaining  half in  the revised  scale of  Rs.  330-560. Pursuant to  the aforesaid recommendation, the Government of India by  its Order  dated 1st July, 1978 directed that only those senior  Draughtsmen who were holding that post on 31st December, 1972  would be  given the senior scale of pay i.e. Rs. 425-700.      The  appellants   who  are   senior  Draughtsmen   made representation to  the  Government  of  India  against  this grouping by the Third Pay Commission. As the representations were not  accepted, the  appellants challenged  the Order of the Government  before the  High Court  in a  Writ  Petition contending that all the Senior Draughtsmen did the same kind

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of work  and discharged same or similar duties and therefore there  was  no  justification  for  distinction  being  made amongst the Senior Draughtsmen, providing two different pay- scales on  the basis  of seniority. The High Court dismissed the petition  holding that  it was open to the Government to fix two different pay scales for Senior Draughtsmen and that it was for the Government to decide what pay scale should be provided to the different classes of employees. 102      Allowing the appeal, ^      HELD: (1)  Where all  relevant considerations  are  the same,  persons   holding  identical  posts  and  discharging similar duties  should not be treated differently. Therefore the Order passed by the Government of India implementing the impugned recommendation of the Third Pay Commission dividing the  Senior   Draughtsmen  into   two  categories  with  two different pay-scales  on the  basis  of  seniority  violates Article 14 of the Constitution and is struck down.      Randhir Singh  v. Union  of India  and  Ors.  [1982]  3 S.C.R. 298, followed.      In the  instant case  the group of Draughtsmen entitled to the  higher scale  of pay  is not selected by any process nor is  it based  on any  merit-cum-seniority basis,  but is based only  on seniority-cum-fitness.  Moreover, the  Senior Draughtsmen  divided   into  two  groups  are  in  the  same Department doing  identical and  same work. It is not a case of  different   grades  created  on  the  ground  of  higher qualification either academic or otherwise or an entitlement by any  other criteria.  Thus the classification between the two groups  of Senior  Draughtsmen is  without any basis. In view of  the total  absence of  any plea  on the side of the respondents that  the Senior  Draughtsmen who  are placed in the advantageous  group, do not perform work and duties more onerous  or  different  from  the  works  performed  by  the appellants group, it will have to be held that this grouping violates Article 14 of the Constitution. [107 E-F]      Kishori Mohanlal  Bakshi v. Union of India, A.I.R. 1962 S.C. 1139;  State of  Punjab v.  Joginder Singh, A.I.R. 1963 S.C. 913; Unikat Sankunni Menon v. State of Rajasthan A.I.R. 1968 S.C.  81; State  of Mysore  and Anr. v. P. Narsingh Rao A.I.R. 1968 S.C. 349, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3121 of 1981.      From the  Judgment and  Order dated  28-9-1979  of  the Madhya Pradesh High Court in Misc. Petition No. 408 of 1978.      M.K. Ramamurthi and H.S. Parihar for the Appellants.      s.c. Maheshwari T. V.S.N. Chari and R.N. Poddar for the Respondents.      The Judgment of the Court was delivered by      KHALID, J.  The question involved in this appeal brings to  fore   how  the   equality  doctrine   embodied  in  the Constitution of  India is  attempted to  be flouted  by some authorities under  cover of  artificial divisions,  dividing persons doing the same work into two 103 groups without any justification and denying to one group by way of  pay and  emoluments what the other group gets. We do not propose  to examine  the width of the quality provisions contained in  Art. 39(d)  in all  its manifold  aspects  but would like to restrict it in its application to the facts of

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this case,  in our attempt to see whether the High Court was justified or  not, in  declining relief  to the petitioners. Now the facts:      This appeal  by special  leave is  directed against the Judgment of  a Division  Bench of  the High  Court of Madhya Pradesh at  Jabalpur in  Miscellaneous Petition  No. 408  of 1978, dismissing  the petition  challenging the Order of the Government of  India accepting  the recommendations  of  the Third Pay  Commission dividing  Senior Draughtsmen  into two groups with  different pay  scales, which  according to  the appellants violated  Articles 14 and 16 of the Constitution. The Appellants  Nos. 1  to 8  are Senior  Draughtsmen in the Ordnance Factories under the Ministry of Defence, Department of Defence  Production and  the Director General of Ordnance Factories. Appellants Nos. 1 to 5 were promoted on different dates to  the post  of senior  Draughtsman  when  they  were working as  Draughtsmen. Appellants  Nos.  6,  7  &  8  were directly recruited  as Senior  Draughtsmen  in  the  Vehicle Factory, Jabalpur  on different  dates. Appellant No. 9 is a registered Association  of  the  Employees  working  in  the Design/Drawing Office  of the  Defence Establishments  under the Ministry of Defence, etc.      There are  33  establishments  under  the  Ministry  of Defence  Production   and  Director   General  of   ordnance Factories, Calcutta.  In these establishments, there are two categories of  Drawing Office  Staff; (1) Senior Draughtsman and (2)  Draughtsman. Senior Draughtsmen are either directly recruited or  promoted from  the post of Draughtsmen. At all relevant times,  all the  Senior Draughtsmen  throughout the above establishments,  were drawing  the same pay scale. The first and the second Pay Commission set up by the Government of India,  recommended same scales of pay for all the Senior Draughtsmen.      A Third  Pay Commission was set up by the Government of India under  the Chairmanship  of  Shri  Raghubar  Dayal,  a retired Judge  of the  Supreme Court of India and consisting of three  other members.  One of the recommendations of this Pay Commission,  related to the scales of pay of Draughtsmen and Senior Draughtsmen, 104 Draughtsmen were to be in the scale of Rs. 330-560 while the Senior Draughtsmen  were divided  into two  groups with  two scales of  pay, Rs.  330-560 and  Rs. 425-700.  It  is  this division of  Senior Draughtsmen  that  was  under  challenge before the High Court.      Representations were  made by  the  Petitioner  against this grouping  by the Third Pay Commission, and they pleaded that there  should not  be any  discrimination in  the  pay- scales of Senior Draughtsmen as was recommended by the Third Pay Commission.  Similar representations were made by others also like  Senior Rate  Estimator, Senior Rate Fixer, Senior Planner  and   Supervisor  etc.  Some  representations  were accepted by  the Government but not the representations made by the  appellants’ Association. Aggrieved by this unhelpful attitude  of   the  Government   in  not   accepting   their representation, the  appellants moved  the High  Court under Article 226  of the Constitution, Their case before the High Court  was  that  Senior  Draughtsmen  discharged  identical duties and  performed similar  work. That being so there was little or  no justification  in putting  50% of  them  in  a higher scale  of pay and 50% others in a lower scale of pay. This grouping was without any intelligible differentia.      The High  Court referred to a decision of this Court in Kishori Mohanlal  Bakshi v.  Union of  India(1)  and  sought support from  it to deny relief to the petitioners. That was

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a case  where the grouping of Income-tax Officers as Class I and class  II with  different scales  of pay  and  different channel of  Promotion was questioned. This Court observed in that Judgment as follows:           "It might  very well  be that "matters relating to      employment or  appointment to any office" in Art. 16(1)      are wide  enough to  include the  matter of  promotion.      Inequality of  opportunity  for  promotion  as  between      citizens holding different posts in the same grade may,      therefore, be  an infringement  of Art. 16. Thus, if of      the Income-tax  Officers of  the same  grade, some  are      eligible for  promotion to a superior grade, and others      are not,  the question  of contravention  of Art. 16(1)      may well  arise. But  no such question can arise at all      when the  rules make  Income-tax Officers  of Class  I,      eligible for appointment as Assistant Commissioner, but      make 105      Income-tax Officers  of Class II eligible for promotion      as Income-tax Officers of Class I but not for promotion      to the  post of  Assistant Commissioners.  There is  no      denial in  such a  case of  equality of  opportunity as      among citizens  holding posts  of the  same  grade.  As      between citizens  holding posts  in different grades in      Government service there can be no question of equality      of opportunity. Art. 16 does not forbid the creation of      different  grades   in  the   Government  service.  The      abstract doctrine  of equal  pay  for  equal  work  has      nothing to  do with Art. 14. Art. 14, therefore, cannot      be said  to be violated whose the pay scales of Class I      and Class  II Income-tax  Officers are different though      they do  the same  kind of  work. Incremental scales of      pay can  be validly  fixed dependent on the duration of      an officers service."      The High  Court also  referred to the decisions of this Court in  State  of  Punjab  v.  Joginder  Singh(1),  Unikat Saakunni Menon  v. State of Rajasthan(2) and State of Mysore & Anr.  v. P.  Narsingh Rao(3)  in which  cases also certain grouping of  employees were  challenged as violative of Art. 14 &  16, which challenge was repelled by the Supreme Court. The High Court relied upon these decisions and held that "It is therefore  evident that  it was open to the Government to fix two  different pay-scales  for Senior  Draughtsmen," and that "It  was for  the Government  to decide  what pay-scale should be  provided to  the different.  classes of employees and simply  because they  have been  provided different pay- scales that would not amount to discriminations."      The High Court was told that all the Senior Draughtsmen did the  same kind  of work  and discharged  same or similar duties and  that therefore  there was no justification for a distinction being  made between  the two  classes of  Senior Draughtsmen, providing two different pay-scales on the basis of seniority, Denial of the higher scale of pay to one class of Senior  Draughtsmen, only  on the  ground  of  length  of service  was,   according  to  the  appellants,  wrong.  The Government brought  in this  classification,  by  its  Order dated 1-7-1978,  directing  that  only  Senior  Draughtsmen, holding that  post on  31-12-1972, would be given the Senior scale and not 106 those who  did not hold that post on 31-12-1972. This basis, the   appellants,   contended   was   unsupportable.   These contentions  did   not  appeal  to  the  High  Court.  While repelling the  arguments of  the Petitioners, the High Court observed that  "The petitioners  are unable to show a single

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authority in  support  of  their  contention  that  all  the persons doing  the same  work are  entitled to same scale of pay." It  is the  correctness of this decision that falls to be decided in this appeal.      Before discussing  the factual  matrix of  the case, we will refer to the Order passed by the Government of India on 27th  January,   1978,  which   brought  into   effect  this difference  in  the  pay-scale.  The  said  Order  reads  as follows:           "The undersigned  is directed  to refer to Sl. No.      32 of  Part-D, Section  I, in the First Schedule to the      Civilians in Defence Services (Revised Pay) Rules, 1973      and to  say that  the President  is pleased  to  decide      that, as  recommended by  the Third  Pay Commission  in      para 81,  Chapter 14,  of their report, half the number      of posts of Draughtsman in the DGOF Organisation on the      present pay scale of Rs. 205-7-240-8-280 will be placed      in the revised scale of Rs. 425-15-500-EB-15-560-20-700      and the remaining half in the revised scale of Rs. 330-      10-380-EB-12-500-EB-15-560.......................      ....On their  allocation to  the revised  scale of  Rs.      425-700 and  Rs. 350-560,  the existing  Draughtsman in      the present pay-scale of Rs. 205-280 who are brought on      to the  revised scale  of Rs  330-560 would continue to      retain their present designation as a personal to them.      The placement of the existing Draughtsman in the higher      revised pay  scale of  Rs. 425-700 will be on the basis      of seniority, subject to the rejection of the unfit.           Any  administrative   instruction  that   may   be      considered necessary may be issued by you.           These orders will take effect from 1-1-73."      It is  pursuant to  this Order  that the  change in the emoluments of  the petitioners’  group  of  Draughtsmen  was effected. 107      It has to be borne in mind that this differentiation is not  based   on  any   intelligible  ground.  The  group  of Draughtsmen entitled  to the  higher scale  of pay,  is  not selected by  any process  nor is  it based on any merit-cum- seniority basis, but is based only on seniority-cum-fitness. There is  no  denial  anywhere  that  both  these  types  of Draughtsmen  do   the  same  work  and  discharge  the  same functions and  duties. According  to the  recommendations of the Third  Pay Commission, a Draughtsman has to get Rs. 330- 10-380-EB-12-500-EB-15-560, while  Senior Draughtsman,  like the appellants,  who  have  become  so  on  promotion,  will continue to  get the  same scale  of pay  and not the higher scale of  pay. In other words, the promoted persons like the appellants, are  without any  monetary benefit  to them. The pay that  they would get as Senior Draughtsman, would be the same  as  a  Draughtsman  would  get  under  the  Third  Pay Commission. That  is, for  the same work and same functions, the appellants  would get  less pay  than the other group of Senior Draughtsmen. The explanation is that this division is based on seniority. This cannot be accepted as sufficient to meet  the  requirements  of  law.  By  seniority,  a  Senior Draughtsman will  get higher pay with the increments that he earns proportionate to the number of years he is in service. Here that  is not  the case. It is the classification of the Senior Draughtsmen  into two groups, that is responsible for the higher pay. For this classification, the Government must be able  to satisfy  the Court  of certain other tests which are non-existent,  in this  case, since it is not in dispute that Senior  Draughtsmen, belonging to the two Divisions, do equal and  same work.  In view  of the  total absence of any

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plea on  the  side  of  the  respondents,  that  the  Senior Draughtsmen who are placed in the advantageous group, do not perform work  and duties  more onerous or different from the work performed  by the  appellants group, it will have to be held  that   this  grouping   violates  Article  14  of  the Constitution.      The High Court did not have the advantage of a decision of this  Court in Randhir Singh v. Union of India & Ors.(1), to which  one of  us was a party, which evolved the equality doctrine embodied  in Article 39(d) and read Article 14 into it; while  considering the  complaint of  a driver  who  was originally in  the Army  but  later  employed  as  a  driver constable  in   Delhi   Police   Force   under   the   Delhi Administration and  who was  denied  the  same  pay  as  was available to  the other  drivers in the service of the Delhi Administration. This Court 108 allowed  the   Writ  Petition  and  directed  the  concerned authorities to  pay the  petitioners in that case, salary at least equal  to the Drivers of the Railway Protection Force. Disagreeing with the plea, put forward by the Union of India this Court observed as follows:           "The Counter  Affidavit does  not explain  how the      case of  the drivers  in the  police force is different      from that  of the drivers in other departments and what      special factors  weighed in fixing a lower scale of pay      for them.  Apparently in  the view  of the respondents,      the  circumstance  that  persons  belong  to  different      departments of  the Government  is itself  a sufficient      circumstance  to   justify  different   scales  of  pay      irrespective of  their identity of their powers, duties      and responsibilities.  We cannot  accept this  view. If      this view is to be stretched to its logical conclusion,      the scales  of pay  of officers of the same rank in the      Government  of   India  may  vary  from  department  to      department notwithstanding that their powers duties and      responsibilities  are   identical.  We   concede   that      equation of  posts and  equation of  pay  are  matters,      primarily  for  the  Executive  Government  and  expert      bodies like  the Pay  Commission and not for Courts but      we must  hasten to say that where all things are equal,      that is where all relevant considerations are the same,      persons holding  identical posts  may  not  be  treated      differentially  in  the  matter  of  their  pay  merely      because  they   belong  to  different  departments.  Of      course, if officers of the same rank perform dissimilar      functions and  the powers,  duties and responsibilities      of the  posts held  by them vary, such officers may not      be heard  to complain  of dissimilar pay merely because      the posts  are of the same rank and the nomenclature is      the same."      This  Court   however  observed   that  a  differential treatment in  appropriate cases can be justified, when there are two  grades based  on reasonable  grounds, and stated as follows:           "It is  well known that there can be and there are      different   grades   in   a   service,   with   varying      qualification for  entry into  a particular  grade, the      higher grade  often  being  a  promotional  avenue  for      officers of  the lower grade. The higher qualifications      for the higher grade, which may be 109      either academic  qualifications or  experience based on      length of service reasonably sustain the classification      of the  officers into  two grades with different scales

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    of pay. The principle of equal pay for equal work would      be an  abstract doctrine  not  attracting  Art.  14  if      sought to be applied to them."      With respect we agree with the conclusion arrived at in the above  Judgment, that  where all relevant considerations are  the   same,  persons   holding  identical   posts   and discharging   similar   duties   should   not   be   treated differently.      The case on hand is much stronger than the facts of the Randhir Singh’s  case. In that case, the drivers belonged to two  different   departments.  In   this  case,  the  Senior Draughtsmen,  divided  into  two  groups  are  in  the  same department doing  identical and  same work. It is not a case of  different   grades  created  on  the  ground  of  higher qualification either academic or otherwise or an entitlement by any  other criteria laid down. The justification for this classification is  by the  mere accident of an earlier entry into service. This cannot be justified.      The above  decision of  this  Court  has  enlarged  the doctrine of  equal pay  for equal work, envisaged in Article 39(d) of the Constitution of India and has exalted it to the position of  a fundamental  right by  reading  it  alongwith Article 14.  This exposition  of law  had given rise to some whispering dissent  in that  the doctrine  had been extended beyond  permissible   limits.  The   observations  that  the abstract doctrine of equal pay for equal work has nothing to do with  Art. 14, in the Judgment in Kishori Mohanlal Bakshi v. Union  of India (supra), rendered by a Constitution Bench of this  Court it  is contended,  may perhaps run counter to the observations  in the  decision referred above. We do not think it  necessary on  the facts  of this case to dwelve at length upon the effect of this observation on a wider campus of service  jurisprudence in  the context  of equal  pay for equal work which will have to be attempted in an appropriate case.      For the  purposes of the case on hand, it is sufficient to note that the classification between two groups of Senior Draughtsmen is 110 without any  basis. They  do the same work, they perform the same duties,  and as  such the  ratio  of  the  decision  in Randhir Singh’s  case applies  to  this  case  with  greater force. The  Order passed  by the Government of India on 27th January, 1978,  implementing  this  classification  violates Art. 14 of the Constitution and has to be struck down and we do so.  In our  opinion, it  would be  a great  injustice to continue the  appellants on the scales of pay of Draughtsmen even  after   promotion  as  Senior  Draughtsmen,  which  is destructive of  all incentive and initiative in the service. In our  Judgment, the  High Court  was in error in declining relief to  the appellants.  We accordingly,  set  aside  the Judgment of  the High Court and allow this appeal and direct the Union  of India to fix the scale of pay of appellants at Rs.  425-15-50-EB-15-560-20-640-EB-20-700.   The  appellants will be entitled to costs from the respondent No. 1. M.L.A.                                       Appeal allowed. 111