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PETITIONER: UNION OF INDIA & ORS. ETC.

       Vs.

RESPONDENT: E. S. SOUNDARAJAN ETC.

DATE OF JUDGMENT04/04/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. TULZAPURKAR, V.D.

CITATION:  1980 AIR  959            1980 SCR  (2)1200  1980 SCC  (3) 125

ACT:      Services-Railway  Service-Two   categories   Commercial Clerks and  Assistant  Station  Masters/Station  Masters-Pay scales substantially  similar but  higher limit  for ASM/SM- Commercial  Clerks  becoming  ASM/SM-Revision  of  setup  by Government  to   provide  opportunity   for  increment   for Commercial  Clerks  -Commercial  Clerks  who  became  ASM/SM sustaining  loss   in  pay-Validity  and  permissibility  of revision.

HEADNOTE:      The  MSM   Railway,  one   of  several  British  Indian Companies, was  merged in the Indian Railways. The employees under the MSM Railway, who constituted the respondents, fell in two  categories namely  Commercial Clerks  and  Assistant Station  Masters/Station  Masters.  The  pay-scales  at  the various grades  were substantially  similar, although at the higher levels  the Assistant Station Masters/Station Masters had higher  scales of  pay. In  1930 and  thereafter several Commercial Clerks  went over  and became  Assistant  Station Masters/Station Masters  and to  some  extent  they  enjoyed certain advantages  on this score, and continued to work out their respective  fortunes in  the administrative service on the basis  of the  then rules  and scales  of pay. As 90 per cent of  these posts  were occupied  by the lowest category, and there  was long stagnation the appellant, Union of India around 1956  felt that  there was  need for  revision of the set-up and with a view to give more relief and opportunities for increments  to the  Commercial Clerks,  revised the  pay scales, which was called the New Deal. When the New Deal was brought in  some Assistant  Station Masters/Station  Masters found that  although they  were senior to certain Commercial Clerks at  the early stages, their pay became less than that of Commercial Clerks.      Being aggrieved,  they agitated their grievances before the Andhra Pradesh High Court. That High Court took the view that Commercial Clerks and ASM/SM were substantially treated alike and  when certain  disparities and emoluments arose on account of  the New  Deal discrimination ensued. The special leave petitions  to this  Court against  this judgment  were dismissed.      Certain employees  also assailed  the New  Deal in  the

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Madras High Court and the High Court observed that though it was not  possible to  agree with  the  view  of  the  Andhra Pradesh High  Court it  had  to  be  followed  as  the  said decision had became final.      In the  appeals to  this Court, it was argued on behalf of the  appellant that  the Madras  High Court had expressly dissented from  this reasoning  of the  Andhra Pradesh  High Court and  contended that Commercial Clerk and ASMs/SMs fall into two  different categories  and  on  the  basis  of  the rulings of  this Court  there  could  not  be  any  case  of discrimination  when   distinct  categories   in  Government service  had  different  treatment  in  the  course  of  the service, and  only such  of the employees as had a chance of going up in emoluments or drawing increments attributable to the New  Deal could  claim the  benefits or advantages under the decision  of the Andhra Pradesh High Court. On behalf of the respondents, it 1201 was argued  that the  second decision  of the Andhra Pradesh High Court  was correct  and that  the illustration given by the High  Court graphically  to clarify  its conclusion  was realistic and correct. ^      HELD :  1.  It  is  not  possible  to  agree  with  the conclusion reached  by the Andhra Pradesh High Court so long as Commercial  Clerks and  ASMs/SMs fall  into two different categories. The  well-established proposition  is that there cannot be a case of discrimination merely because fortuitous circumstances arising  out of  some peculiar developments or situations create  advantages or disadvantages for one group or the  other although in the earlier stages they were, more or less  alike. If  one class  has not  been singled out for special treatment,  the  mere  circumstances  of  advantages accruing to  one or  the other  cannot result  in breach  of Article 14 of the Constitution. [1204E-G]      Reserve Bank  of India v. N. C. Paliwal & Others [1977] 1 S.C.R. 377, referred to.      2. The  employees (ASM/SMs)  who, had they continued as Commercial Clerks  would not  have  had  any  increments  on account of  the New Deal, could not claim such increments on the basis  of the  Andhra Pradesh  High Court  decision. All that the said decision sought to do was to see that ASMs/SMs were not prejudiced merely by leaving their earlier position as Commercial  Clerks. It  did not  put  them  in  a  better position than  they would  have, if  they had  continued  as Commercial Clerks. [1205H, 1206A]      3. The  emoluments that  the respondents in the appeals as well as the special leave petitions will draw will not be affected. Those not before the Court will not be entitled to amelioratory relief. [1204G-H, 1205A]      4. The  Andhra Pradesh  decision will prevail while the law laid  down by  the said  decision will  stand set aside. [1205C].

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeals Nos. 481- 482 of 1975.      Appeals by  special leave  from the  Judgment and Order dated 9-1-1974  of the  Madras High  Court in Writ Petitions Nos. 84 and 1454 of 1971.                             AND                Civil Appeal No. 2165 of 1977      Appeals by  special leave  from the  Judgment and order

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dated 27-8-1975  of the  Andhra Pradesh  High Court  in W.P. Nos. 946/74, 1484/74, 3563/74, 5084/74 and 6739/74.                             AND                Civil Appeal No. 2165 of 1977      Appeal by  special leave  from the  Judgment and  Order dated 2-9-1974  of the Andhra Pradesh High Court in W.A. No. 127/74. 1202                             WITH           Special Leave Petition (Civil) No. 4029 of 1977      From the  Judgment and  Order dated  14-12-1976 of  the Andhra Pradesh High Court in Writ Appeal No. 108/76.      Soli J. Sorabjee Addl. Sol. Genl. for the Appellants in CA Nos. 481-482 of 1975.      R. B.  Datar, E. C. Agarwala and Girish Chandra for the Petitioners in SLP 4029/77.      M. K. Ramamurthy and Ambrish Kumar for the Respondents.      B. Kanta Rao for the Respondent in CA Nos. 416-420/77.      K. R. Choudhary for Respondents in SLP 4029/1977.      The Judgment of the Court was delivered by      KRISHNA IYER,  J. The  main appeal  with which  we  are concerned in  this batch of civil appeals (and special leave petitions whose  fate will  depend on  the decision  in  the civil appeals)  is one where a Railway employee successfully challenged the  refusal to  pay certain  emoluments  by  the Union of  India in  the Madras High Court. His writ petition in the  Madras High  Court was in the wake of similar one in the Andhra Pradesh High Court a few years prior thereto. The decision of  the Andhra Pradesh High Court had become final, especially because  the special  leave petition filed by the Union of  India challenging  it had  been dismissed  by this Court. The  Madras High Court considered the reasoning given in the  Andhra Pradesh  decision and was inclined to dissent from  it,  but  felt  that  the  consequences  of  divergent decisions in the two High Courts might lead to anomalise and should, therefore,  be avoided.  The  High  Court  expressed itself thus :           "With respect  to the  view of  the Andhra Pradesh      High  Court,   we  are   unable  to   agree  with   it.      .........................................    But    the      decision of the Andhra Pradesh High Court has created a      peculiar situation.  The result of giving effect to it,      as the  Department is  bound to  give  effect  to  that      judgment which  has become final is that employees like      the petitioners  in the  Railway service  in the Andhra      Pradesh Area  will  be  treated  differently  from  the      petitioners, who  are in  every  way  similar  to  them      except for  the region in which they happen to work, in      the matter of pay-scales and other matters." 1203 Having regard  to this  odd potential  consequence, the High Court of  Madras fell  in line  with the Andhra Pradesh High Court and upheld the writ petitioners’ claim.      A few  facts, minimally  necessary to bring out the two questions of  law urged  before us by the aggrieved Union of India, may  now be  narrated. We  are concerned with the MSM Railway, one of those British Indian companies, since merged in the  Indian Railways.  The employees  under the  MSM with whom we  are  concerned  fell  in  two  categories,  namely, Commercial  Clerks  and  Assistant  Station  Masters/Station Masters. Their  pay scales,  at  the  various  grades,  were substantially similar  although at  the  higher  levels  the Assistant Station  Masters/Station Masters had higher scales of pay.  It was  found at  the  lowest  levels  in  the  two categories of  posts, there was long stagnation since around

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90 per  cent of  these posts  were occupied  by  the  lowest categories. The Union of India, around 1956, felt that there was need for revision of this set-up and with a view to give more  relief   and  opportunities   for  increments  to  the Commercial Clerks  at the  most congested  levels,  produced what has been called the New Deal. We may make it clear that the New Deal covered not merely Commercial Clerks and Asstt. Station Masters  and Station  Masters but  also  applied  to other categories  in the  Railway  service.  The  particular problem  which   confronts  the  Court  now  alone  need  be mentioned.  That  is  why  we  are  focussing  attention  on Commercial Clerks and ASM/SMs.      Way back  in 1930  and from then on, several Commercial Clerks went  over and  became Asstt. Station Masters/Station Masters and  to some  extent they enjoyed certain advantages on this  score. They  continued to work out their respective fortunes in  the administrative  service on the basis of the then rules and scales of pay. When in 1956, the New Deal was brought in some Asstt. Station Masters/Station Masters found that although  they were senior to certain Commercial Clerks at the  early stages,  their pay  became less  than then  of Commercial Clerks.  This, according  to  them,  was  unequal treatment of  equals. It  was on  this grievance that with a constitutional veneer  some of  those employees moved a writ petition in  the Andhra  Pradesh High Court. That High Court took the  view, right  or wrong  that Commercial  Clerks and ASMs/SMs were  substantially treated  alike and when certain disparities in  emoluments arose on account of the New Deal, discrimination ensued.  On the  basis of this logic the High Court directed as follows :           "In the result, the writ petitions are allowed and      the respondents  are directed  to fix  the pay  of  the      petitioners in  their present  cadre so  as not be less      than the  pay they would have drawn if they had been in      the cadre of Commercial 1204           Clerks  from  which  they  were  promoted,  to  be      effective from  the date  of the  implementation of the      New  Deal.   The  petitioners  will  get  their  costs.      Advocate’s fee  Rs. 250/- (Rupees two hundred and fifty      only). One set."      The learned Additional Solicitor General, appearing for the Union  of India,  pointed out that the Madras High Court expressly  dissented   from  this   reasoning  and   further contended before us that Commercial Clerks and ASMs/SMs fall into two  different categories  and  on  the  basis  of  the rulings of  this Court  there  could  not  be  any  case  of discrimination  when   distinct  categories   in  Government service  had  different  treatment  in  the  course  of  the service. He  cited before  us a  series  of  decisions,  the earliest of which was reported in [1963] 3 SCR. 809 (at 817, 823 and  824). Indeed a series of other decisions right down to [1977]  1 SCR  377 at  389 have  taken the view that even though two  categories may  be close  cousins they are quite distinct. There  cannot  be  any  discrimination  spelt  out merely because  they have been dealt with in regard to their salary scales  or other  conditions of  service differently. Equality postulates  identity of  the class and once that is absent, discrimination  cannot arise.  This argument appeals to us  and we  are not prepared to agree with the conclusion reached by  Andhra Pradesh  High Court so long as Commercial Clerks and  ASMs/SMs fall  into two different categories-and this seems  to be plain and is contained in the narration of facts by the Andhra Pradesh High Court as well as the Madras High Court.  It is  equally important  to remember the well-

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established proposition  that there  cannot  be  a  case  of discrimination  merely   because  fortuitous   circumstances arising out  of some  peculiar  developments  or  situations create advantages  or disadvantages  for one  group  or  the other although  in the  earlier stages  they were,  more  or less, alike.  If one  class has  not been  singled  out  for special  treatment,  the  mere  circumstance  of  advantages accruing to  one or  the other  cannot result  in breach  of Article 14  of the  Constitution. On  this basis  we  should agree that  the reasoning of the High Court of Madras and so declare the law correctly.      Indeed the Madras High Court has also gone this for but has declined  to reverse  the result  reached by  the Andhra Pradesh High  Court. We  have earlier  extracted the  reason which weighed with the Madras High Court in doing so. We too feel likewise.  The only  persons who  claim benefits on the basis of  the Andhra  Pradesh decision are those before this Court  at  the  various  civil  appeals  and  special  leave petitions and no more. They are some-where around 547 or so. The exact  figure is  not necessary for us to mention except to make  it plain  that no  one who is not before this Court now will be entitled to the ameliora- 1205 tive relief  that we  propose to give largely induced by the realism when appealed to the Madras High Court.      Having heard  counsel on  oth sides  on this aspect, we direct that  while the law has been declared by us and it in effect reverse the position taken by the Andhra Pradesh High Court, the emoluments that the respondents in the appeals as well as  the special  leave petitions  will draw will not be affected, subject  of course  to our  observations regarding the second  point urged  by the  last  Additional  Solicitor General.      We thus make it clear that the net result of the Andhra Pradesh decision will prevail while the law laid down by the said decision will stand set aside.      Now we  proceed to  the second point urged before us by Shri Soli  J. Sorabjee. This takes us to the second decision of the  Andhra Pradesh  High Court.  Certain  events  ensued after the first decision rendered by the Andhra Pradesh High Court. The  employees  who  were  beneficiaries  under  that decision sought  a clarification  of the decision with which the Union  of India  did not agree. Therefore, a second writ petition was  filed where the High Court again went into the construction of  the concluding  or decretal  portion of the first decision of the Andhra Pradesh High Court.      Here again  we do not agree with the conclusion reached by the  High Court because its reasoning appears to us to be fallacious.   The   rivel   contentions   bearing   on   the interpretation of  the first  decision may be briefly stated before we  express our  opinion. The  whole grievance of the employees concerned  was that  had the  aggrieved Commercial Clerks  not  become  Assistant  Station  Master  or  Station Masters they  would have got the benefit of the New Deal and thereby got  increased emoluments. This should not be denied to them merely because they had gone over to the category of Assistant Station  Masters/Station  Masters.  The  necessary consequence is  that only such of them as had a chance going up in  emoluments or  drawing increments attributable to the New Deal  could claim  any benefits  or advantages under the decision of  the Andhra  Pradesh High  Court. This  was  the contention pressed before us by Mr. Soli J. Sorabjee. On the other  hand,   Mr.  M.  K.  Ramamurthy,  appearing  for  the employees-counsel for  the others  similarly  situated  have adopted his arguments-argued before us that the 2nd decision

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of the  Andhra Pradesh  High Court  was correct and that the illustration given  by the High Court graphically to clarify its conclusion  was realistic and correct. We do not go into it in  greater detail  because we are clear in our mind that the  employees   (ASMs/SMs)  who,   had  they  continued  as Commercial Clerks would not have had 1206 any increments  on account  of the New Deal, could not claim such increments  on the  basis of  the Andhra  Pradesh  High Court decision.  All that the Andhra Pradesh decision sought to do was to see that ASMs/SMs were not prejudiced merely by leaving their  earlier position as Commercial Clerks. It did not put  them in  a better  position than they would have if they had continued as Commercial Clerks. On this footing, we disagree with  the decision of the Andhra Pradesh High Court in the second round which was rendered in a clarification of the conclusion in the first decision      Pragmatism here  again dictates  the ultimate relief we propose to  give. Assuming  the clarification  by the Andhra Pradesh High  Court to  be wrong-and  it is  in the light of what we have stated above-an intricate calculation will have to be  made about  things of long ago and a restructuring of the little  benefits each  one draw  would have to be worked out.  We  do  not  think  that  this  is  worth  the  candle especially having  regard to  the fact  that  the  employees belonging to the lower category and their emoluments are far from enviable.      We, therefore,  uphold the  law as contended for by the Union of  India, but  decline to  interfere  with  the  cash results and  emoluments that  the employees/respondents have been held  entitled to  under the  decisions of  the  Andhra Pradesh High  Court and the Madras High Court. We dispose of the appeals  and the  special leave  petitions as  above. No costs. The  Union of  India will  implement  the  directions given by  the High  Court concerned  within six  months from today. N.K.A. 1207