13 May 1954
Supreme Court


Case number: Appeal (civil) 2 of 1954






DATE OF JUDGMENT: 13/05/1954


CITATION:  1954 AIR  493            1955 SCR  158  CITATOR INFO :  F          1963 SC 222  (24)  R          1966 SC 976  (21)  F          1973 SC 231  (16)  RF         1973 SC1461  (1191)  R          1987 SC2117  (14)  RF         1989 SC 100  (33)

ACT: Constitution  of India, Art. 14-Scale of dearness  allowance fixed  by  Provincial Government-Different  from  the  scale fixed  by Central Government-Whether discriminatory-Rule  44 of  Fundamental Rules-Grant of dearness allowance-Whether  a right  or a matter of discretion-Mandamus or any other  Writ under Art. 226 of the Constitution.

HEADNOTE: The Government of Central Provinces and Berar (Now State  of Madhya Pradesh) fixed in 1948 a scale of dearness  allowance for its servants which though practically identical with the scale  of dearness allowance fixed by Central Government  in respect of salaries over Rs. 400 per mensem was less than it in respect of salaries for Rs. 400 per mensem or less.   The petitioner-State government servant-challenged the  validity of the order of the State Government on the ground that  his fundamental right under Art. 14 of the Constitution had been violated  inasmuch as he had a right to be  equally  treated with the Central Government Servants similarly situated. Held,   that  under  the  provisions  of  Rule  44  of   the Fundamental  Rules  it is a matter of  discretion  with  the local Government whether it will grant dearness allowance to any  Government servant and if so how much.  It  imposes  no duty on the State to grant it and therefore no mandamus  can issue to compel the State to grant it nor can any other writ or direction be issued in respect of it as there is no right in  the  Government  servant  which  is  capable  of   being protected or enforced. Article 14 does not authorise the striking down of a law  of one  State  on  the ground that in contrast with  a  law  of another  State  on  the  same  subject  its  provisions  are



discriminatory.  Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held  to be unconstitutional by a process of comparative study of the provisions of two enactments. The  sources  of  authority  for  the  two  statutes   being different, Article 14 can have no application. Therefore ’the scale of dearness allowance sanctioned by the Central  Government can furnish no ground for  holding  that the  allowance  sanctioned  by  the  Government  of  Central Provinces  and Berar is repugnant to Article 14.  The  State Government was entitled to fix the Government of India rates for one slab and Ali; different rates for another slab,                             600 The Punjab Province v. Pandit Tara Chand ([1947] F.C.R. 89), and  State  of  Bihar V. Abdul  Majid  ([1954]  S.C.R.  786) distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 of 1954. Appeal  under article 132 (1) of the Constitution  of  India from the Judgment and Order dated the 10th September,  1953, of  the High Court of Judicature at Nagpur in  Miscellaneous Petition No. 123 of 1953. M.   C.  Setalvad, Attorney-General for India (P.   P.  Naik and I. N. Shroff, with him) for the appellant. M.   K.   Nambiar  (Rajinder  Narain,  with  him)  for   the respondent. B.   Sen  and P. K. Bose for the Intervener (State  of  West Bengal). 1954.  May 13.  The Judgment of the Court was delivered by VENKATARAMA AYYAR J-The point for decision in this appeal is whether a Resolution of the Government of Central  Provinces and  Berar, now Madhya Pradesh, dated 16th September,  1948, fixing  a  -scale of dearness allowance to be  paid  to  its servants is repugnant to article 14 of the Constitution. The  circumstances under which the above Resolution came  to be adopted may be briefly mentioned.  Consequent on the war, there  was a phenomenal rise in the price of foodstuffs  and of other essential commodities, and among the persons  worst hit  by  it were the Government servants.  As a  measure  of relief  to them, the Central and the Provincial  Governments sanctioned a grant of grain allowances to them under various Resolutions  passed  in  1940.  The scheme  adopted  by  the Central  Government  was  that its  employees  stationed  in various   Provinces  received  the  same  benefit   as   the respective Provincial Government employees.  But this scheme was  found  to be unsuitable for employees  of  the  Central Government,  as  the allowances granted  by  the  Provincial Governments  were  not  uniform.  On  10th  May,  1946,  the Central  Government  appointed  a  Central  Pay  Commission, hereinafter  referred to as the Commission, to enquire  into and 601 -report  on the conditions of service of its employees  with particular reference to I ’the structure of their pay scales ’and standards of remuneration with the object of  achieving a  rationalisation,  simplification and  uniformity  to  the fullest degree possible." The Commission, which was presided over  by  Sir S. Varadachariar, recommended  by  its  report dated  3rd May, 1947, the grant of dearness allowance  on  a specified  scale.   On  27th May, 1947,  the  Government  of Central  Provinces  and  Berar appointed  a  Pay  Committee, hereinafter  referred to as the Committee, "to  examine  the



recommendations of the Central Pay Commission and to  report the  extent to which and the modifications subject to  which these  recommendations should be accepted by the  Provincial Government,  so far as Government servants under  its  rule- making  control  are concerned." By its  report  dated  22nd June, 1948, the Committee recommended the grant of  dearness allowance  on  a scale which, though  practically  identical with  that adopted by the Commission in respect of  salaries above  Rs.  400  per mensem, was less  than  it  as  regards salaries   of   Rs.   400  per  mensem   or   less.    These recommendations  were  accepted  by the  Government  by  its Resolution  dated 16th September, 1948.  This difference  in the  result  between the two scales not  unnaturally  caused considerable dissatisfaction among the employees  concerned, and  after  unsuccessful  attempts to  get  redress  on  the executive side, they filed through their representative, the respondent, the present application under article 226 of the Constitution. In  the petition it was alleged that "the  State  Government should have uniformly adopted the Government of India  rates for  all its servants and the discrimination in  making  the two-fold  slab and accepting the Government of  India  rates for  one slab, i.e., for servants receiving salary over  Rs. 400,  and not accepting them in respect of the  other  slab, i.e.,  of servants drawing below Rs. 400, is highly  discri- minatory," that "the State Government servant has a right to be  treated  equally  with the  Central  Government  servant similarly  situated,"  and  that "every  servant  has  these fundamental and natural rights and 77 602 the  petitioner and the members of the Ministerial  Services Associations have a right to demand from the respondent  the Dearness  Allowance at the Government of India  rates."  The petitioner then prayed: "That  declaring that all ministerial servants are  entitled to the Government of India rates of Dearness Allowance or in any  case adequate Dearness Allowance, the State  Government should  be  directed by a writ of mandamus or by  any  other suitable  writ  or direction to  cancel  the  discriminatory rules  of  Dearness Allowance and adopt  the  Government  of India rates to all servants without discrimination or in any case,  to provide with adequate rates of Dearness  Allowance sufficient to provide reasonable subsistence for them." The  Government  contested  the  petition  on  the  grounds, firstly,  that  the  claim for dearness  allowance  was  not justiciable, and secondly, that the difference in the scales of  dearness allowance adopted by the Commission and by  the Committee  did not violate article 14.  The  learned  Judges (Sinha C.J. and Bhutt J.) held that under the rules dearness allowance  was placed on the same footing as pay,  and  that the  claim relating thereto was therefore  justiciable;  and that  the differentiation made between the employees of  the Central Government and of the State Government in the matter of   the   grant  of  dearness  allowance  rested   on   "no intelligible and reasonable basis," and that the  Resolution dated  16th  September,  1948,  was  therefore  bad.    They accordingly issued a direction to the State Government  that they  do  reconsider  the  question  of  dearness  allowance payable  to  the employees concerned.  It  is  against  this judgment  that the present appeal has been preferred by  the State  Government  on a certificate  granted  under  article 132(1) of the Constitution. It  is argued on behalf of the appellant firstly that  grant of  dearness  allowance  is  a  matter  ex  gratia  and  not



justiciable,  and  that neither a writ of mandamus  nor  any direction  could  be  issued  with  reference  thereto,  and secondly, that the Resolution dated 16th September, 1948, is not hit by article 14 of the Constitution.  In our  opinion, both these contention are well founded                             603 On the first question, Rule 44 of the Fundamental Rules runs as follow: "Subject to any restrictions which the  Secretary of  State in Council may by order impose upon the powers  of the Governor-General in Council or the Governor in  Council, as the case may be, and to the general rule that the  amount of a compensatory allowance should be so regulated that  the allowance  is  not on the whole a source of  profit  to  the recipient,  a Local Government may grant such  allowance  to any Government servant under its control and may make  rules prescribing  their  amounts and the conditions  under  which they may be drawn."    Under  this provision, it is a matter of discretion  with the   local  Government  whether  it  will  grant   dearness allowance  and if so, how much.  That being so,  the  prayer for  mandamus  is  clearly misconceived, as  that  could  be granted  only  when  there is in the applicant  a  right  to compel  the performance of some duty cast on  the  opponent. Rule  44  of the Fundamental Rules confers no right  on  the Government  servants to the grant of dearness allowance;  it imposes no duty on the State to grant it.  It merely confers a power on the State to grant compassionate allowance at its own  discretion,  and no mandamus can issue  to  compel  the exercise of such a power.  Nor, indeed, could any other writ or  direction  be issued in respect of it, as  there  is  no right  in the applicant which is capable of being  protected or enforced.    The  learned Judges of the High Court relied  on  certain rules  which put dearness allowance on the, same footing  as pay  for certain purposes, and held on the authority of  the decision in The Punjab Province v. pandit Tara Chand(1) that the present claim was justiciable.  But The Punjab  Province v.  Pandit Tara Chand was an action for recovery of  arrears of  salary,  land  it was held that under the  law  of  this country which differed in this respect from that of England, arrears  of salary were a debt due by the  Government,  that they  could  be  attached in execution  of  a  decree  under section  60,  Civil Procedure Code, as a debt, and  that  on that basis an action to recover the same was (1)  [1947] F.C.R. 89. 604 maintainable.  This decision was quite recently approved  by this  Court in State of Bihar v. Abdul Majid(1), wherein  it was  pointed  out  that salary was not in the  nature  of  a bounty,  and that whatever was recoverable by a Petition  of Rights  in  England  could be recovered by  action  in  this country.   This  question may therefore now be taken  to  be settled beyond controversy.  But we are not concerned in the present proceedings with any debt payable by the Government. The  claim is not to recover arrears of  dearness  allowance which  had  accrued due under the rules  in  force  relating thereto.   The  claim  now put forward  its  to  compel  the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim  is a matter of grace and not a matter of right.  In England, no petition of right will lie in respect of such a claim.   The position  is  thus  stated in Halsbury’s  Laws  of  England, Volume IX, page 688, Note (s) @:    "  It  is erroneous to suppose that a petition  of  right will  lie for matters which are of grace and not  of  right.



[De Bode (Baron) v. R.(2).]"     That is also the law in this country where an action  is a  substitute  for a petition of right.  In the  result,  we must  hold that the matters raised in the petition  are  not justiciable.    Mr. Nambiar, the learned counsel for the respondent,  did not dispute the correctness of this position.  But he argued that when once the Government passed ’a Resolution fixing  a scale  of  allowance  under Rule 44, that would  be  law  as defined in article 13(3)(a) of the Constitution, and if that law infringed, article 14, it could be declared void.   That is  a  contention  which is clearly open  to  him,  and  the question  therefore that falls to be decided is whether  the Resolution   dated   26th  September,  1948,   is   bad   as infringing article 14.     Now,  the scheme which has been adopted in the  impugned Resolution  is firstly that dearness allowance if; to  I  be paid  to the employees on a scale graded according  to  pay, different rates being adopted for different slabs and  there being a progressive reduction (1) [1954] S.C.R. 786. (2) 13 Q. B- 364 Ex.  Ch. at P- 387- 605 of  the  rate from the lowest to the highest  category.   No contention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article 14.  Secondly, within any given slab, the scheme places  all the  employees  in  the same position, except  that  in  the lowest  ranks a slightly higher rate is fixed for  residents in the cities of Nagpur and Jubbulpore, which again has  not been  attacked as discriminatory.  These being the  features of the scheme, there can be no room for the contention  that it has made any discrimination.    Mr.  Nambiar does, not contend that there is anything  in the  scheme or in the Resolution adopting it, which bring  s it  within  the  prohibition enacted  in  article  14.   His contention is that the Committee whose recommendations  were accepted  by the Government adopted the rates  suggested  in the report of the Commission as regards Government  servants who  drew a monthly salary of. over Rs. 400, but  when  they came to those employees who drew a monthly salary of Rs. 400 or  less, they discarded the rates fixed by the  Commission, and,  instead, adopted different and lower rates,  and  that this  was discrimination hit by article 14. In other  words, the  impugned  Resolution,  though valid in  itself  as  not infringing  article  14, becomes void under  that  provision when  it  is  taken in conjunction with the  report  of  the Commission.   We  do not find anything in article  14  which supports  this  somewhat startling  contention.   Under  the Constitution,   the  Union  and  the  States  are   distinct entities,  each  having its own executive  and  Legislature, with  their  powers well-defined.  Article 12  defines  "the State"  as including the Government and the  Legislature  of each  of  the States.  Article 13(2) enacts that  the  State shall not make any laws taking away, or abridging the rights conferred by Part III, and article 14 enacts that,    "The  State shall not deny to any person equality  before the  law  or  the equal protection of the  laws  within  the territory of India."     On these provisions, the position is that when a law  is impugned under article 13, what the Court has to 606 decide is whether that law contravenes any of the provisions of Part III.  If it-decides that it does, it has to  declare it  void; if it decides that it does not, it has  to  uphold



it.   The  power of the Court to declare a  law  void  under article  13  has  to  be exercised  with  reference  to  the specific  legislation which is impugned.  It is  conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open  to the  Court to disregard the form and treat them as  one  law and  strike it down, if in their conjunction they result  in discrimination.   But  such a course is not open  where,  as here,  the two laws sought to be read in conjunction are  by different   Governments  and  by   different   Legislatures. Article 14 does not authorise the striking down of a law  of one  State  on  the ground that in contrast with  a  law  of another  State  on  the  same  subject  its  provisions  are discriminatory.  Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held  to be unconstitutional by a process of comparative study of the provisions of the two enactments.  The sources of  authority for the two statutes being different, article 14 can have no application.   The result, therefore, is that the  scale  of dearness   allowance  recommended  by  the  Commission   and sanctioned  by the Central Government can furnish no  ground for holding that the scale of dearness allowance recommended by  the Committee and adopted by the appellant is  repugnant to article 14.  It may no doubt ,sound hard that  Government servants  doing work of a similar kind and working,  it  may be,  even  in  the  same  place,  should  receive  different allowances; but the rights of the parties have to be decided on  legal considerations, and it is impossible to hold  that the Resolution in question is bad under article 14.     It  was  argued  on behalf of  the  appellant  that  the assumption  underlying the argument of the respondent  -with reference  to article 14 that the Committee had adopted  the Report of the Commission in part and rejected it in part was itself without foundation.  In the view we have taken on the applicability of article 14, this question has no  practical importance; but as 607 all the materials have been placed before us, we may briefly express our opinion thereon.  In paragraph 80 of the  Report the  Committee observed that while the Commission based  its scale  on the cost of living index, they themselves  adopted the  current  level of prices as the basis for  fixation  of dearness  allowance.  In paragraph 83 they further  observed that in fixing the scale on the basis of the cost of  living index  the element of pay had also been taken into  account, but  that as they had revised the scale of basic  pay,  they were not including it in fixing the dearness allowance.   In paragraph 31, they observed that unlike the Commission  they were  taking into consideration the financial  resources  of the  State  in  fixing  the  scale.   Thus,  the   Committee approached  the problem from a different angle, and  applied different  principles  in  fixing  the  scale  of   dearness allowance; and if the two schemes produced the same  results at  some  stages,  that was due to coincidence  and  not  to adoption of the report of the Commission by the  ’Committee. Mr.  Nambiar  also  referred us to two  Resolutions  of  the appellant dated 4th January, 195 1, and 6th October, 195  1, adopting  the  scale fixed by the Commission in  respect  of certain  other  categories.   That has  no  bearing  on  the question  whether the Committee whose  recommendations  were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination.  The facts stated  above show that the Committee went into  the  matter independently,  and  viewed the question  from  a  different standpoint;  and in formulating the scheme which  they  did,



they did not adopt the Report of the Commission, though they derived considerable assistance from it.     In  the  result,  this appeal must be  allowed  and  the petition   of   the  respondent  dismissed;   but   in   the circumstances,  there  will be no order as to  costs  either here or in the Court below.                          Appeal allowed. 608