The State of Madhya Pradesh Vs. G. C.
Mandawar [1954] INSC 62 (13 May 1954)
AIYYAR, T.L. VENKATARAMA MAHAJAN, MEHAR CHAND
(CJ) MUKHERJEA, B.K.
BOSE, VIVIAN BHAGWATI, NATWARLAL H.
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.
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 rulemaking 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 discriminatory,"
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. B364 Ex. Ch. at P387605 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.
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