REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO. 9480  OF  2010 (Arising out of S.L.P.(C) NO. 26495/2008)

Steel Authority of India Ltd. & Ors.                                 ... Appellants  

                                                  Versus

Dibyendu Bhattacharya                                                     ...Respondent

J U D G M E N T  

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order  

dated 1.8.2008 passed by the High Court of Calcutta in FMA No.782  

of 2007; MAT No.4487 of 2005; and CAN No.4852 of 2006 by which  

the Division Bench has allowed the appeal of the respondent against  

the judgment and order of the learned Single Judge dated 16.9.2005  

passed in Writ  Petition No.2539(W) of  2005 by which the learned  

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Single Judge had rejected the claim of the respondent for parity in pay  

and  issuance of direction to upgrade the post held by him.

3. Facts and circumstances giving rise to this appeal are that the  

appellant  No.2  issued  an  advertisement  in  “The  Statesman”  

newspaper  dated  22.9.1993  inviting  applications  for  the  post  of  

Speech Therapist/Audiologist at the Durgapur Steel Plant in S-6 grade  

in Medical and Health Services.  The respondent applied in response  

to the said advertisement.  An interview was held on 17.6.1996 and  

the respondent’s name found place at serial no.4 in the merit list.  As  

none of the first three candidates joined, the appointment was offered  

to the respondent vide letter dated 17.6.1996. The respondent joined  

the  said  post  without  any  protest.   After  serving  for  a  few years,  

respondent  started  claiming  parity  with  one  Shri  B.V.  Prabhakar,  

employed  at  Rourkela  Steel  Plant,  a  different  unit  of  the  same  

company who was holding the post of E-1 grade in executive cadre  

though  designated  as  Speech  Therapist/Audiologist.   Respondent  

made representation dated 1.9.2004 not claiming parity in pay but to  

change the cadre and upgrade his post, accord relaxation in eligibility  

and give him the pay-scale of the post of E-1 grade from the date of  

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his joining the service.   The said representation stood rejected vide  

order  dated  12/14.10.2004  by  the  Authorities,  observing  that  

upgradation of his post to executive cadre was not permissible under  

the policy of the company, and as the respondent was working in non-

executive  cadre,  he  could  not  claim  parity  with  an  employee  in  

another unit of the company on a post of executive cadre.   

4. Being  aggrieved,  the  respondent  preferred  the  writ  petition  

before the High Court claiming the same relief, however, the learned  

Single  Judge  dismissed  the  same  vide  judgment  and  order  dated  

16.9.2005.  The respondent challenged the said judgment by filing an  

intra court appeal. The said appeal has been allowed, issuing direction  

to the present appellants to grant the pay-scale to the respondent as  

was being paid to Shri B.V. Prabhakar at the Rourkela Steel Plant in  

the  executive  cadre  and  that  too  from  the  date  of  his  initial  

appointment.   The  arrears  also  were  to  be  paid  within  six  weeks.  

Hence, this appeal.

5. Shri  Rajiv  Dhawan,  learned senior counsel  appearing for the  

appellants  has  submitted  that  the  said  B.V.  Prabhakar  had  been  

appointed  vide  order  dated  20.4.1987  in  Rourkela  Steel  Plant  in  

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executive  cadre in E-1 grade taking into account  his experience in  

service in the Bokaro Steel Plant, another unit of the company.  There  

are different set of rules governing the services of the employees of all  

different  plants/units of the company and all the employees are not  

governed  by  the  Central  Rules.   The  respondent  has  not  been  

appointed in the centralised service nor is his post transferable.  The  

mode  of  appointment  and  selection  of  employees  in  each  unit  is  

different  and  made  independently.  The  respondent  had  applied  in  

pursuance of an advertisement  dated 22.9.1993 for a non-executive  

post along with eight other candidates.  Respondent’s name was at  

serial  no.4  in  the  merit  list/panel.   The  name  of  Shri  Sourav  

Mukhopadhyay,  serving in Bharat Heavy Electricals Ltd. (hereinafter  

referred to as BHEL)  appeared at serial no.1 in the panel, however as  

he was getting  higher pay in BHEL than the post in question,  he  

asked  for  pay  protection.  His  demand  was  not  acceptable  to  the  

appellants, thus, he declined the offer. The post was offered to Shri  

Mithlesh Kumar, the next candidate in the panel, but he did not turn  

up to join. The third candidate in panel claimed for upgrading the post  

which was not acceptable to the company for the reason that the post  

had been advertised with certain grade and pay-scale and it was not  

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possible for the unit to upgrade the same.  On refusal to join by the  

third  candidate,   the  post  was  offered  to  the  respondent  and  he  

accepted and joined the post without protest in S-6 grade on 17.6.1996  

on  the terms and conditions  incorporated in his appointment letter.  

The post to which the respondent claimed parity is not equivalent to  

the post held by him and therefore, the question of pay parity could  

not  arise.   The  relief  sought  by  the  respondent  had  been  of  

upgradation  of  post,  granting  relaxation  of  eligibility  with  

retrospective effect. Such a relief could not be granted to him.  Each  

plant/unit has to make the recruitment as per the local needs and as  

per the requirements of the plant.  Thus, all the units do not have the  

same service conditions.  A post may be in executive cadre in one unit  

and may be in non-executive cadre in another unit.  Unequals cannot  

be treated equals.  Thus, there was no justification for the Division  

Bench to allow the appeal filed by the respondent.  Pay parity claimed  

by the respondent could not be given to him as he was holding a non-

executive  post,  while  Shri  B.V.  Prabhakar  was holding the  post  in  

executive  cadre in another  unit  of  the  same company.   Hence,  the  

appeal deserves to be allowed.    

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6. Per contra, Shri S.K. Keshote, learned senior counsel appearing  

for the respondent has vehemently opposed the appeal contending that  

parity in pay is a fundamental right of an  employee.  Both the posts  

carry  the  same  nature  of  work  and  responsibilities.  There  is  no  

difference in both the posts qualitatively.   It  is  immaterial  whether  

Shri B.V. Prabhakar was holding the post in executive cadre.  The  

relief has been granted by the Division Bench of the High Court after  

considering  all  relevant  factors  and  judgments  of  this  Court.   The  

impugned judgment and order does not require any interference and  

thus, the appeal is liable to be dismissed.   

7. We have considered the rival submissions made by both learned  

counsel for the parties and perused the record.

8. Undoubtedly, several posts were advertised on 22.9.1993 by the  

appellant  No.2  to  fill  up  the  vacancies  in  Durgapur  Steel  Plant  

including the post of Speech Therapist/Audiologist in S-6 grade and  

post  of  Doctor  in  grade  E-1,  Executive  in  Medical  and  Health  

Services.  The respondent applied for the post in grade S-6 as he was  

not eligible for the post of grade E-1 wanting the qualification of a  

Doctor.   Respondent  in  his  representation made to the Authorities,  

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claimed the change of cadre and upgradation of his post.  The last part  

of his representation dated 1.9.2004 reads as under:-

“I  may  kindly  be  placed/selected  in  Executive  cadre  waiving  some  criteria  applicable  to  eligible candidate for Executive posts, if nothing  can be done to place me initially from the date of  my joining in DSP in Executive cadre.” (Emphasis  added)

Thus,  it  is  evident  from  the  aforesaid  representation  that  the  

respondent requested the employer to waive the eligibility criteria and  

upgrade his post to the executive cadre with retrospective effect, i.e.,  

from the date of his initial joining.   

The  said  representation  stood  rejected  vide  order  dated  

12/14.10.2004 with observation that non-executive post could not be  

upgraded to the executive cadre as per  the policy of the company.  

More so, there was no enabling provision for grant of relaxation to the  

eligibility criteria.   

9. The respondent approached the High Court by filing the writ  

petition, inter alia, claiming the following reliefs:-

“(a) A  writ  of  and/or  in  the  nature  of  Mandamus  commanding  the  respondents,  their  men,  agents  and/or  assigns to rescind and/or cancel the memos bearing no.PL- 1/1(101)/6/07/Theraphy/004/2217  dated  1.10.2004,  and  DMHS/Misc/reply/October dated 12/14.10.2004, issued by  

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the Manager (Personnel/recruitment), SAIL, DSP and the  Director  (M  &  HS),  Durgapur  Steel  Plant  respectively,  forthwith;

(b)  A  writ  of  and/or  in  the  nature  of  Mandamus  commanding  the  respondents,  each  one  of  them,  their  servants, agents and/or assigns to fix up the scale of pay  of the petitioner commensurate to the post of E-1 as it is  prevailing in other units of SAIL, forthwith;

(c) A  writ  of  and/or  in  the  nature  of  Mandamus  commanding  the respondents,  each one of  their  agents  and/or assigns  not to withhold scale of pay for the post  of  Speech  Therapist/Audiologist  commensurate  to  the  post of E-1 grade;

(d) A  writ  of  and/or  in  the  nature  of  Mandamus  directing the respondents, each one of them, their agents  and/or assigns to fix up the scale of pay of the petitioner  commensurate to the post of E-1 grade and to release all  arrear  salary  and  consequential  benefits  since  joining  with the admissible rate of interest thereto, forthwith;

(e) A writ  in  the  nature  of  Mandamus  directing  the  respondents,  each  one  of  them,  their  agents  and/or  assigns  to  treat  the  post  of  the  petitioner  as  Executive  post (E-1 grade) forthwith;

(f) A  writ  of  and/or  in  the  nature  of  Certiorari  directing the respondents to transmit the entire records of  the case forming the basis of non providing and/or non  fixation  of  the  pay  scale  for  the  post  of  Speech  Therapist/Audiologist  commensurate  to the post  of E-1  grade to this Hon’ble Court and to certify them and on  being so certified, quash the same so that conscionable  justice may be administered to the parties.

                    …………………………………………………………..”

10. Appellants  contested  the  case  pointing  out  that  it  was  not  

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permissible under the statutory rules/policy of the company to meet  

the  demand  of  the  respondent-employee.   Had  it  been  so,  the  

appointment could have been offered to Shri Sourav Mukhopadhyay  

who claimed protection of pay which he was getting in BHEL, or to  

accede to the request made by other panellists to upgrade the post and  

in that manner the company could have got the service of a better  

candidate than the respondent. The writ petition was dismissed vide  

judgment  and  order  dated  16.9.2005  observing  that  two  unequals  

cannot be treated equals.  Thus, the respondent was not dealt with any  

discrimination as there was no post in Durgapur Steel Plant of Speech  

Therapist/Audiologist in executive cadre.  The relief sought could not  

be granted to him and there was no reason to accept the writ petition.  

The Division Bench failed to appreciate what the relief claimed by the  

respondent  was  and  further  that  two  unequals  cannot  be  treated  

equals. The Division Bench was swayed by an impression that it was  

not  permissible  for  the  employer-Company  to  have  different  pay-

scales  in  two different  units  existing  at  different  locations,  though  

such a course is always permissible for the management.          

11.   We have thoroughly examined the Personnel Manual prepared  

by the Steel Authority of India Ltd. in 1992.  It prescribes different  

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posts  in  different  grades.   E-1  grade  posts  include  Management  

Trainees, Junior Managers and Medical Officers.  Clause 5.3.1 clearly  

provides that centralised services are limited for few posts only which  

are Executive posts in grade E-6 and above;  Management Trainees  

(Technical) in E-1 grade; and Junior Manager (F & A) in grade E-1  

etc.   

Clause 5.3.2 reads as under:-

“Direct recruitment to all other posts, executive as  well  as  non-executive,  will  be  done  at  the  respective  Plant/Unit  level,  unless  decided  otherwise by the competent authority.”

 Clause 16.2 provides that all appointments offered shall  be  

made by respective Unit/Plant.  Thus, it is evident  that the services of  

the respondent were governed by rules governing the Unit/Plant i.e.  

Durgapur Steel Plant.  It was not centralised service and every unit  

was  to  be  treated  as  a  separate  and  independent  in  these  regards  

though belonging to the same company.  In peculiar circumstances, it  

may be open to the authority to place a particular post in executive  

cadre  and  such  a  post  may  be  required  to  be  filled  up  by  an  

experienced/qualified person.  Another unit  may not require such a  

higher post, considering the local needs and requirements.  In such a  

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fact-situation, it is neither desirable nor permissible to allow the claim  

of parity by the respondent holding a post in non-executive cadre to a  

post in executive cadre.  Nor it is permissible for the court to have a  

judicial review of the reasons for which the said post has been kept in  

executive cadre in another unit.  Such a requirement may be present in  

the Unit at Rourkela Steel Plant.  However, it cannot be doubted that  

the said Shri B.V. Prabhakar had been appointed in 1987 about two  

decades prior to the respondent.  Parity in pay with a person of such  

seniority may not be justified.

12. In  State of Haryana v. Jasmer Singh & Ors., AIR 1997 SC  

1788, this Court considered the provisions of Articles 39 (d), 14 and  

16 of the Constitution and held that the principle of ‘equal pay for  

equal work’ is not always easy to apply. There are inherent difficulties  

in comparing and evaluating the work done by different persons in  

different organisations, or even in the same organisation. There may  

be differences in educational or technical qualifications, which may  

have  a  bearing  on  the  skills  which  the  holders  bring  to  their  job  

although the designation of the job may be the same. There may also  

be other considerations which have relevance to efficiency in service,  

which may justify differences in pay scales on the basis of criteria  

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such as experience and seniority, or a need to prevent stagnation in the  

cadre, so that good performances can be elicited from persons who  

have reached the top of the pay scale.  There may be various other  

similar  considerations  which  may  have  a  bearing  on  efficient  

performance in a job.  

13. In State of Haryana & Anr. v. Tilak Raj & Ors., AIR 2003  

SC 2658, this Court held as under:–

“To claim a relief on the basis of equality, it is   for the claimants to substantiate a clear-cut basis   of equivalence and a resultant hostile discrimina- tion before becoming eligible to claim rights on a   par with other group vis-a-vis an alleged discrim- ination........  Equal  pay  for  equal  work”  is  a  concept  which requires for its  applicability  com- plete and wholesome identity between a group of   employees  claiming identical  pay  scales  and the  other  group  of  employees  who  have  already  earned such pay scales. The problem about equal  pay cannot always be translated into a mathemat- ical formula.”

14. In   Harbans Lal & Ors.  v. State of  Himachal  Pradesh &  

Ors., (1989) 4 SCC 459,  this Court considered a similar issue and ob-

served that while determining the issue of parity in pay, large number  

of considerations and various dimensions of the job are required to be  

taken up by the courts.  The accuracy required by the job and the dex-

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terity it entails may differ from job to job.  It cannot be evaluated by  

the mere averments in the self - serving affidavits or counter affidavits  

of the parties.  It must be left to be evaluated and determined by ex-

pert body.  The Court further held as under :  

“The  discrimination  complained  of  must  be   within the same establishment owned by the same  management. A comparison cannot be made with   counterparts in other establishments with differ- ent  management,  or  even  in  establishments  in   different geographical locations though owned by  the same master. Unless it is shown that there is a   discrimination amongst the same set of employees   by the same master in the same establishment, the   principle of “equal pay for equal work” cannot be  enforced….”(Emphasis added)

15.  In  Mewa Ram Kanojia v. All India Institute of Medical  

Sciences and Ors.,  (1989) 2 SCC 235, this Court dealt with an issue  

of pay parity between Speech Therapists and Audiologists and held  

that  merely  because  Speech  Therapists  perform similar  duties  and  

functions in other institutions, are paid higher pay-scales is no good  

ground  to accept the petitioner’s claim for equal pay.  There may be  

difference in educational qualifications, quality and volume of work  

required to be performed by the hearing therapists  in other  institu-

tions. The person claiming parity must sufficiently produce material  

before the Court to adjudicate upon such a complicated issue of factu-

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al determination. More so, if the employer is not the same, the prin-

ciple of equal pay for equal work would not be applicable.   

16. It is the duty of an employee seeking parity of pay under Article  

39(d) of the Constitution of India to prove and establish that he had  

been discriminated against, as the question of parity has to be decided  

on consideration of various facts and statutory rules etc. The doctrine  

of ‘equal pay for equal work’ as enshrined under Article 39 (d) of the  

Constitution read with Article 14 thereof, cannot be applied in a vacu-

um. The constitutional scheme postulates equal pay for equal work for  

those who are equally placed in all respects. The Court must consider  

the factors like the source and mode of recruitment/appointment, the  

qualifications, the nature of work, the value thereof, responsibilities,  

reliability,  experience,  confidentiality,  functional  need,  etc.  In other  

words, the equality clause can be invoked in the matter of pay scales  

only  when  there  is  wholesome/wholesale  identity  between  the  

holders of two posts. The burden of establishing right and parity in  

employment is only on person claiming such right. (Vide U.P. State  

Sugar Corporation Ltd. & Anr. v. Sant Raj Singh & Ors., AIR  

2006 SC 2296; Union of India & Anr. v. Mahajabeen Akhtar, AIR  

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2008 SC 435; Union of India & Ors. v. Dineshan K.K., AIR 2008  

SC 1026; Union of India & Ors. v. Hiranmoy Sen & Ors., (2008) 1  

SCC 630;  Official  Liquidator  v.  Dayanand and Ors., (2008)  10  

SCC  1;  Uttar  Pradesh  State  Electricity  Board  & Anr.  v.  Aziz  

Ahmad, (2009) 2 SCC 606; and State of Madhya Pradesh & Ors. v.  

Ramesh Chandra Bajpai, (2009) 13 SCC 635).  

17. This  Court  while deciding a  similar  issue in  State of  West  

Bengal  &  Anr.  v.  West  Bengal  Minimum  Wages  Inspectors  

Association & Ors., (2010) 5 SCC 225, held as under:

“The evaluation of  duties  and responsibilities  of   different posts and determination of the pay scales   applicable  to  such  posts  and  determination  of   parity  in duties and responsibilities  are complex   executive  functions,  to  be  carried  out  by  expert   bodies. Granting parity in pay scale depends upon  comparative job evaluation and equation of posts.

The principle `equal pay for equal work’ is not   a fundamental right but a constitutional goal. It is   dependent on various factors such as educational   qualifications,  nature  of  the  jobs,  duties  to  be   performed,  responsibilities  to  be  discharged,   experience,  method  of  recruitment,  etc.   Comparison merely based on designation of posts   is  misconceived.  Courts  should  approach  such  matters with restraint and interfere only if they   are satisfied that the decision of the Government   is  patently  irrational,  unjust  and  prejudicial  to   any particular section of employees.

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The  burden  to  prove  disparity  is  on  the   employees claiming parity.” (emphasis added)

(See also State of Kerala v. B. Renjith Kumar & Ors., (2008)  

12 SCC 219)

18.    In Union of India & Anr. v. P.K. Roy, AIR 1968 SC 850, this  

Court accepted the factors laid down by the Committee of Chief Sec-

retaries which was constituted for settling the disputes regarding equa-

tion  of  posts  arising  out  of  the  States  Reorganisation  Act,  1956,  

wherein the following four factors had been held to be determinative  

of the issue of equivalence of posts:–

1. The nature and duties of a post; 2. The  responsibilities  and  powers  exercised  by  the  

officer holding a post, the extent of territorial or other  charge held or responsibilities discharged;

3. The  minimum  qualifications,  if  any,  prescribed  for  recruitment to the post; and

4.The salary of the post.

19.    In The State of Maharashtra & Anr. v. Chandrakant Anant  

Kulkarni & Ors., AIR 1981 SC 1990; and  Vice Chancellor, Lalit  

Narain Mithila University v. Dayanand Jha, AIR 1986 SC 1200,  a  

similar view has been reiterated observing that equal status and nature  

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and responsibilities of the duties attached to the two posts have to be  

taken into consideration for equivalence of the post.

20. Similar view has been reiterated in  E.P. Royappa v. State of  

Tamil Nadu & Anr., AIR 1974 SC 555; and Sub-Inspector Rooplal  

& Anr. v. Lt. Governor through Chief Secretary, Delhi & Ors.,  

(2000) 1 SCC 644, wherein this Court following the earlier judgment  

in P.K. Roy (Supra) held that the salary of the post alone may not be a  

determining factor, the other three criterion should also be fulfilled.

21.       In  Union of India & Ors. v. S.L. Dutta & Anr., (1991) 1  

SCC 505; Union of India & Ors. v. N.Y. Apte & Ors., (1998) 6  

SCC 741; State of U.P. & Ors. v. J.P. Chaurasia & Ors., AIR 1989  

SC 19; and Kshetriya Kisan Gramin Bank v. D.B. Sharma & Ors.,  

AIR 2001 SC 168, this  Court held that whether the determination of  

two posts are equal or not, is a job of the Expert Committee and the  

court should not interfere with it unless the decision of the Committee  

is found to be unreasonable or arbitrary or made on extraneous con-

siderations. More so, it is an executive function to fix the service con-

ditions etc. and lies within the exclusive domain of the rule making  

authority.  

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(See  also  T.  Venkateswarulu  v.  Executive  Officer,  Tirumala  

Tirupathi Devasthanams & Ors., (2009) 1 SCC 546).

22. In  S.C.  Chandra  &  Ors.  v.  State  of  Jharkhand  &  Ors,  

(2007) 8 SCC 279, this Court held:

“In our opinion fixing pay scales by courts by  applying the principle of equal pay for equal work  upsets the high constitutional principle of separa- tion  of  powers  between  the  three  organs  of  the   State. Realising this, this Court has in recent years  avoided  applying  the  principle  of  equal  pay  for   equal work,  unless there is  complete and whole- sale identity between the two groups……..”

23.     In S.P. Shivprasad Pipal v. Union of India & Ors., (1998) 4  

SCC 598, this Court held as under:  

“……it  is  not  open  to  the  court  to  consider   whether the equation of posts made by the Central   Government is right or wrong. This was a matter   exclusively within the province of the Central Gov- ernment. Perhaps the only question the court can  enquire  into  is  whether the  four principles  cited   above had been properly taken into account. This   is the narrow and limited field within which the su- pervisory jurisdiction of the court can operate”.

24. It  is  a  settled  legal  proposition  that  it  is  not  always  

impermissible to provide two different pay-scales in the same cadre  

on the basis of selection based on merit with due regard to experience  

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and  seniority.  (Vide   J.P.  Chaurasia  (Supra)  and  Meva  Ram  

Kanojia (Supra).  

25. “Non-uniformities would not in all events violate Article 14.”  

Thus, a mere difference does not always amount to discrimination.  

(Vide Madhu Kishwar & Ors. v. State of Bihar & Ors.,  (1996) 5  

SCC 125;  Associate Banks Officers’ Association v. State Bank of  

India & Ors., AIR 1998 SC 32; and Official Liquidator (Supra)).  

26. In view of the above, the law on the issue can be summarised to  

the effect that parity of pay can be claimed by invoking the provisions  

of Articles 14 and 39(d) of the Constitution of India by establishing  

that the eligibility, mode of selection/recruitment, nature and quality  

of  work and duties  and effort,  reliability,  confidentiality,  dexterity,  

functional need and responsibilities and status of both the posts are  

identical.   The  functions  may  be  the  same  but  the  skills  and  

responsibilities may be really and substantially different.  The other  

post may not require any higher qualification, seniority or other like  

factors.  Granting parity in pay scales depends upon the comparative  

evaluation of job and equation of posts. The person claiming parity,  

must plead necessary averments and prove that all things are equal  

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between the concerned posts.   Such a complex issue cannot be adju-

dicated by evaluating the affidavits filed by the parties.  The onus to  

establish the discrimination by the employer lies on the person claim-

ing the parity of pay. The expert committee has to decide such issues,  

as the fixation of pay scales etc. falls within the exclusive domain of  

the  executive.  So  long  as  the  value  judgment  of  those  who  are  

responsible for administration i.e. service conditions etc., is found to  

be  bonafide,  reasonable,  and  on  intelligible  criteria  which  has  a  

rational nexus of objective of differentiation, such differentiation will  

not amount to discrimination. It is not prohibited in law to have two  

grades of posts in the same cadre.  Thus, the nomenclature of a post  

may not be the sole determinative factor.  The courts in exercise of  

their limited power of judicial review can only examine whether the  

decision of the State authorities is rational and just or prejudicial to a  

particular set of employees.  The court has to keep in mind that a mere  

difference in service conditions  does  not  amount to discrimination.  

Unless there is complete and wholesale/wholesome identity between  

the two posts they should not be treated as equivalent and the Court  

should avoid applying the principle of equal pay for equal work.    

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27. The present case requires to be examined in view of the afore-

said settled legal propositions.  Undoubtedly, the respondent had ap-

plied in response to an advertisement for the post of Grade S-6 and  

not for Grade E-1 as he did not possess the requisite qualifications for  

the post in the said Grade. The name of the respondent had appeared  

at serial No. 4 in the merit list and he was offered appointment only  

for the reason that the candidates whose names appeared at serial Nos.  

1 and 3 asked for pay protection/up-gradation of the post, and it was  

not acceptable to the employer. The candidate whose name appeared  

at serial No.2 in the merit list, did not join though was offered the ap-

pointment.  The respondent accepted the appointment in Grade S-6 on  

the  terms  and  conditions  incorporated  in  his  appointment  letter  

without any protest.  The relief sought by the respondent is the same,  

which had,  in  fact  been asked by two candidates  in  the  merit  list,  

above the respondent. If such a demand was acceptable to the appel-

lants they could have gotten a more meritorious candidate than re-

spondent. Grant of the relief sought by the respondent is violative of  

equality clause contained in Article 14 of the Constitution of India  

qua other candidates in the panel above the respondent who did not  

join for not granting the same relief though it had been sought at least  

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by two of them at the initial state of recruitment.  By the impugned or-

der, the respondent has not been granted the post in Grade E-1 but  

salary equivalent to that of Shri B.V. Prabhakar has been granted to  

the Respondent.  The order itself is mutually inconsistent and contra-

dictory. The representation of the respondent had been for waiving the  

criteria meaning thereby that the respondent sought a relaxation in the  

eligibility criteria for the post in Grade E-1.  It is evident from the rep-

resentation itself that the respondent never possessed the eligibility for  

the post of Grade E-1.  The Law does not prohibit  an employer to  

have different grade of posts in two different units owned by him.  

Every unit is an independent entity for the purpose of making recruit-

ment of most of its employees. The respondent had not been appoin-

ted in centralised services of the company. Shri B.V. Prabhakar, had  

been appointed in E-1 Grade,  in the Rourkela unit,  considering his  

past services in the Bokaro Steel Plant, another unit of the company,  

for about two decades prior to the recruitment of the respondent. As  

every unit may make appointments taking into consideration the local  

needs and requirement, such  parity claimed by the respondent cannot  

be held to be tenable. The reliefs sought by the respondent for up-

gradation of the post and waiving the eligibility criteria had rightly  

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been refused by the appellants and by the learned Single Judge.  In  

such a fact-situation, there was no justification for the Division Bench  

to allow the writ petition, granting the benefit from the date of initial  

appointment of the respondent.  The respondent has not produced any  

tangible  material  to  substantiate  his  claim,  thus,  he  could  not  dis-

charge the onus of proof to establish that he had made some justifiable  

claim.   The respondent miserably failed to make out a case for pay  

parity to the post of E-1 Grade in executive cadre. The appeal, thus,  

deserves to be allowed.   

28. Before parting with the case, it may be pertinent to state that al-

though a Plant/Unit of the appellant-company is competent to make  

appointment  in  the  executive  and non-executive  cadres  in  the  said  

plant/unit, however, it has no authority to determine the grade or the  

pay scale of a post  or determine and sanction the number of posts  

since the same relates to the recruitment policy of the appellant-com-

pany. This would be evident from the perusal of the Recruitment Plan  

of the appellant-company laid down at Clause 7.1 of the Personnel  

Manual which reads:

“The Recruitment Plan will form part of the annu- al Human Resource Plan of the Company. Among  

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other  things,  the  Human  Resource  Plan  will   clearly  state  the  skill/grade  wise  requirement  of   man power in the Company i.e., the Plants/Units,   and  the  subsidiaries  separately.   Any  deviation   from the approved plan/mix will be subject to the   prior approval of Chairman/Board.”

In view of the above, the competent authority in the corporate  

office of the appellant-company is directed to consider the issue ex-

peditiously relating to anomaly raised by the respondent herein for fu-

ture recruitments.  

29. The appeal is allowed. The judgment and order of the Division  

Bench dated 1.8.2008 which is impugned herein, is hereby set aside  

and the judgment of the learned Single Judge dated 16.9.2005 is re-

stored. In the facts of the case, there shall be no order as to costs.  

   ..…….....................J.             (J.M. Panchal)  

      ……… ….................J.                                       (Dr. B.S. Chauhan)

                                                             …………………………J.                                                               (Gyan Sudha Misra)

New Delhi,

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October 29, 2010.

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