P. Savita S/O Shri P.L. Savita Vs.
Union of India, Ministry of Defence  INSC 112 (1 May 1985)
KHALID, V. (J) KHALID, V. (J) SEN, A.P. (J)
CITATION: 1985 AIR 1124 1985 SCR Supl. (1)
101 1985 SCC Supl. 94 1985 SCALE (1)1091
CITATOR INFO: D 1988 SC1291 (9) R 1989 SC 19
(26) RF 1989 SC 30 (3) F 1989 SC1256 (4) C 1989 SC1308 (8,10)
Constitution of India, Article 14 and
39(d)-Equal pay for equal work-Senior Draughtsmen doing the same work and
discharging similar functions and duties-Clarification into two groups on the
basis of seniority with two different pay scales-Whether discriminatory.
Civil Service-Government servant doing some
work and discharging similar duties-Classification based on seniority with two
different pay scales-Whether legal and justified.
Senior Draughtsmen in the Ordnance Factories
under the Ministry of Defence are either directly recruited or promoted from
the post Draughtsmen. At all relevant times all the Senior Draughtsmen
throughout the above establishments were drawing the same pay scale of Rs. 205-
280. While revising the pay-scale of various categories of employees, the Third
Pay Commission recommended that the Draughtsmen should be placed in the scale
of Rs. 330-560.
The Pay Commission also recommended that the
Senior Draughtsmen should be divided into two groups and half the number of
posts of Draughtsmen in the above organisations on the present pay-scale of Rs.
205-280 be placed in the revised scale of Rs. 425-700 on the basis of seniority
and the remaining half in the revised scale of Rs. 330-560.
Pursuant to the aforesaid recommendation, the
Government of India by its Order dated 1st July, 1978 directed that only those
senior Draughtsmen who were holding that post on 31st December, 1972 would be
given the senior scale of pay i.e. Rs. 425-700.
The appellants who are senior Draughtsmen
made representation to the Government of India against this grouping by the
Third Pay Commission. As the representations were not accepted, the appellants
challenged the Order of the Government before the High Court in a Writ Petition
contending that all the Senior Draughtsmen did the same kind of work and
discharged same or similar duties and therefore there was no justification for
distinction being made amongst the Senior Draughtsmen, providing two different
pay- scales on the basis of seniority. The High Court dismissed the petition
holding that it was open to the Government to fix two different pay scales for
Senior Draughtsmen and that it was for the Government to decide what pay scale
should be provided to the different classes of employees.
102 Allowing the appeal, ^
HELD: (1) Where all relevant considerations
are the same, persons holding identical posts and discharging similar duties
should not be treated differently. Therefore the Order passed by the Government
of India implementing the impugned recommendation of the Third Pay Commission
dividing the Senior Draughtsmen into two categories with two different
pay-scales on the basis of seniority violates Article 14 of the Constitution
and is struck down.
Randhir Singh v. Union of India and Ors.
 3 S.C.R. 298, followed.
In the instant case the group of Draughtsmen
entitled to the higher scale of pay is not selected by any process nor is it
based on any merit-cum-seniority basis, but is based only on
seniority-cum-fitness. Moreover, the Senior Draughtsmen divided into two groups
are in the same Department doing identical and same work. It is not a case of
different grades created on the ground of higher qualification either academic
or otherwise or an entitlement by any other criteria. Thus the classification
between the two groups of Senior Draughtsmen is without any basis. In view of
the total absence of any plea on the side of the respondents that the Senior
Draughtsmen who are placed in the advantageous group, do not perform work and
duties more onerous or different from the works performed by the appellants
group, it will have to be held that this grouping violates Article 14 of the
Constitution. [107 E-F] Kishori Mohanlal Bakshi v. Union of India, A.I.R. 1962
S.C. 1139; State of Punjab v. Joginder Singh, A.I.R. 1963 S.C. 913; Unikat
Sankunni Menon v. State of Rajasthan A.I.R.
1968 S.C. 81; State of Mysore and Anr. v. P.
Narsingh Rao A.I.R. 1968 S.C. 349, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 3121 of 1981.
From the Judgment and Order dated 28-9-1979
of the Madhya Pradesh High Court in Misc. Petition No. 408 of 1978.
M.K. Ramamurthi and H.S. Parihar for the
s.c. Maheshwari T. V.S.N. Chari and R.N.
Poddar for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. The question involved in this appeal brings to fore how the equality
doctrine embodied in the Constitution of India is attempted to be flouted by
some authorities under cover of artificial divisions, dividing persons doing
the same work into two 103 groups without any justification and denying to one
group by way of pay and emoluments what the other group gets. We do not propose
to examine the width of the quality provisions contained in Art. 39(d) in all
its manifold aspects but would like to restrict it in its application to the
facts of this case, in our attempt to see whether the High Court was justified
or not, in declining relief to the petitioners.
Now the facts:
This appeal by special leave is directed
against the Judgment of a Division Bench of the High Court of Madhya Pradesh at
Jabalpur in Miscellaneous Petition No. 408 of 1978, dismissing the petition
challenging the Order of the Government of India accepting the recommendations
of the Third Pay Commission dividing Senior Draughtsmen into two groups with
different pay scales, which according to the appellants violated Articles 14
and 16 of the Constitution.
The Appellants Nos. 1 to 8 are Senior
Draughtsmen in the Ordnance Factories under the Ministry of Defence, Department
of Defence Production and the Director General of Ordnance Factories.
Appellants Nos. 1 to 5 were promoted on different dates to the post of senior
Draughtsman when they were working as Draughtsmen. Appellants Nos. 6, 7 & 8
were directly recruited as Senior Draughtsmen in the Vehicle Factory, Jabalpur
on different dates. Appellant No. 9 is a registered Association of the
Employees working in the Design/Drawing Office of the Defence Establishments
under the Ministry of Defence, etc.
There are 33 establishments under the
Ministry of Defence Production and Director General of ordnance Factories,
Calcutta. In these establishments, there are two categories of Drawing Office
Staff; (1) Senior Draughtsman and (2) Draughtsman. Senior Draughtsmen are
either directly recruited or promoted from the post of Draughtsmen. At all
relevant times, all the Senior Draughtsmen throughout the above establishments,
were drawing the same pay scale. The first and the second Pay Commission set up
by the Government of India, recommended same scales of pay for all the Senior
A Third Pay Commission was set up by the
Government of India under the Chairmanship of Shri Raghubar Dayal, a retired
Judge of the Supreme Court of India and consisting of three other members. One
of the recommendations of this Pay Commission, related to the scales of pay of
Draughtsmen and Senior Draughtsmen, 104 Draughtsmen were to be in the scale of
Rs. 330-560 while the Senior Draughtsmen were divided into two groups with two
scales of pay, Rs. 330-560 and Rs. 425-700. It is this division of Senior
Draughtsmen that was under challenge before the High Court.
Representations were made by the Petitioner
against this grouping by the Third Pay Commission, and they pleaded that there
should not be any discrimination in the pay- scales of Senior Draughtsmen as
was recommended by the Third Pay Commission. Similar representations were made
by others also like Senior Rate Estimator, Senior Rate Fixer, Senior Planner
and Supervisor etc. Some representations were accepted by the Government but
not the representations made by the appellants' Association. Aggrieved by this
unhelpful attitude of the Government in not accepting their representation, the
appellants moved the High Court under Article 226 of the Constitution, Their
case before the High Court was that Senior Draughtsmen discharged identical
duties and performed similar work. That being so there was little or no justification
in putting 50% of them in a higher scale of pay and 50% others in a lower scale
This grouping was without any intelligible
The High Court referred to a decision of this
Court in Kishori Mohanlal Bakshi v. Union of India(1) and sought support from
it to deny relief to the petitioners. That was a case where the grouping of
Income-tax Officers as Class I and class II with different scales of pay and
different channel of Promotion was questioned. This Court observed in that Judgment
"It might very well be that
"matters relating to employment or appointment to any office" in Art.
16(1) are wide enough to include the matter of promotion.
Inequality of opportunity for promotion as
between citizens holding different posts in the same grade may, therefore, be
an infringement of Art. 16. Thus, if of the Income-tax Officers of the same
grade, some are eligible for promotion to a superior grade, and others are not,
the question of contravention of Art. 16(1) may well arise. But no such
question can arise at all when the rules make Income-tax Officers of Class I,
eligible for appointment as Assistant Commissioner, but make 105 Income-tax
Officers of Class II eligible for promotion as Income-tax Officers of Class I
but not for promotion to the post of Assistant Commissioners. There is no
denial in such a case of equality of opportunity as among citizens holding
posts of the same grade. As between citizens holding posts in different grades
in Government service there can be no question of equality of opportunity. Art.
16 does not forbid the creation of different grades in the Government service.
The abstract doctrine of equal pay for equal work has nothing to do with Art.
14. Art. 14, therefore, cannot be said to be violated whose the pay scales of
Class I and Class II Income-tax Officers are different though they do the same
kind of work. Incremental scales of pay can be validly fixed dependent on the
duration of an officers service." The High Court also referred to the decisions
of this Court in State of Punjab v. Joginder Singh(1), Unikat Saakunni Menon v.
State of Rajasthan(2) and State of Mysore & Anr. v. P. Narsingh Rao(3) in
which cases also certain grouping of employees were challenged as violative of
14 & 16, which challenge was repelled by
the Supreme Court.
The High Court relied upon these decisions
and held that "It is therefore evident that it was open to the Government
to fix two different pay-scales for Senior Draughtsmen," and that "It
was for the Government to decide what pay-scale should be provided to the
different. classes of employees and simply because they have been provided
different pay- scales that would not amount to discriminations." The High
Court was told that all the Senior Draughtsmen did the same kind of work and
discharged same or similar duties and that therefore there was no justification
for a distinction being made between the two classes of Senior Draughtsmen,
providing two different pay-scales on the basis of seniority, Denial of the higher
scale of pay to one class of Senior Draughtsmen, only on the ground of length
of service was, according to the appellants, wrong. The Government brought in
this classification, by its Order dated 1-7-1978, directing that only Senior
Draughtsmen, holding that post on 31-12-1972, would be given the Senior scale
and not 106 those who did not hold that post on 31-12-1972. This basis, the
appellants, contended was unsupportable. These contentions did not appeal to
the High Court. While repelling the arguments of the Petitioners, the High
Court observed that "The petitioners are unable to show a single authority
in support of their contention that all the persons doing the same work are
entitled to same scale of pay." It is the correctness of this decision
that falls to be decided in this appeal.
Before discussing the factual matrix of the
case, we will refer to the Order passed by the Government of India on 27th
January, 1978, which brought into effect this difference in the pay-scale. The
said Order reads as follows:
"The undersigned is directed to refer to
32 of Part-D, Section I, in the First
Schedule to the Civilians in Defence Services (Revised Pay) Rules, 1973 and to
say that the President is pleased to decide that, as recommended by the Third Pay
Commission in para 81, Chapter 14, of their report, half the number of posts of
Draughtsman in the DGOF Organisation on the present pay scale of Rs.
205-7-240-8-280 will be placed in the revised scale of Rs.
425-15-500-EB-15-560-20-700 and the remaining half in the revised scale of Rs.
....On their allocation to the revised scale
of Rs. 425-700 and Rs. 350-560, the existing Draughtsman in the present
pay-scale of Rs. 205-280 who are brought on to the revised scale of Rs 330-560
would continue to retain their present designation as a personal to them.
The placement of the existing Draughtsman in
the higher revised pay scale of Rs. 425-700 will be on the basis of seniority,
subject to the rejection of the unfit.
Any administrative instruction that may be
considered necessary may be issued by you.
These orders will take effect from
1-1-73." It is pursuant to this Order that the change in the emoluments of
the petitioners' group of Draughtsmen was effected.
107 It has to be borne in mind that this
differentiation is not based on any intelligible ground. The group of
Draughtsmen entitled to the higher scale of pay, is not selected by any process
nor is it based on any merit-cum- seniority basis, but is based only on
There is no denial anywhere that both these
types of Draughtsmen do the same work and discharge the same functions and
duties. According to the recommendations of the Third Pay Commission, a
Draughtsman has to get Rs. 330- 10-380-EB-12-500-EB-15-560, while Senior
Draughtsman, like the appellants, who have become so on promotion, will
continue to get the same scale of pay and not the higher scale of pay. In other
words, the promoted persons like the appellants, are without any monetary
benefit to them. The pay that they would get as Senior Draughtsman, would be
the same as a Draughtsman would get under the Third Pay Commission. That is,
for the same work and same functions, the appellants would get less pay than
the other group of Senior Draughtsmen. The explanation is that this division is
based on seniority. This cannot be accepted as sufficient to meet the
requirements of law. By seniority, a Senior Draughtsman will get higher pay
with the increments that he earns proportionate to the number of years he is in
Here that is not the case. It is the
classification of the Senior Draughtsmen into two groups, that is responsible
for the higher pay. For this classification, the Government must be able to
satisfy the Court of certain other tests which are non-existent, in this case,
since it is not in dispute that Senior Draughtsmen, belonging to the two
Divisions, do equal and same work. In view of the total absence of any plea on
the side of the respondents, that the Senior Draughtsmen who are placed in the
advantageous group, do not perform work and duties more onerous or different
from the work performed by the appellants group, it will have to be held that
this grouping violates Article 14 of the Constitution.
The High Court did not have the advantage of
a decision of this Court in Randhir Singh v. Union of India & Ors.(1), to
which one of us was a party, which evolved the equality doctrine embodied in
Article 39(d) and read Article 14 into it; while considering the complaint of a
driver who was originally in the Army but later employed as a driver constable
in Delhi Police Force under the Delhi Administration and who was denied the
same pay as was available to the other drivers in the service of the Delhi
Administration. This Court 108 allowed the Writ Petition and directed the
concerned authorities to pay the petitioners in that case, salary at least
equal to the Drivers of the Railway Protection Force.
Disagreeing with the plea, put forward by the
Union of India this Court observed as follows:
"The Counter Affidavit does not explain
how the case of the drivers in the police force is different from that of the
drivers in other departments and what special factors weighed in fixing a lower
scale of pay for them. Apparently in the view of the respondents, the
circumstance that persons belong to different departments of the Government is
itself a sufficient circumstance to justify different scales of pay
irrespective of their identity of their powers, duties and responsibilities. We
cannot accept this view. If this view is to be stretched to its logical
conclusion, the scales of pay of officers of the same rank in the Government of
India may vary from department to department notwithstanding that their powers
duties and responsibilities are identical. We concede that equation of posts
and equation of pay are matters, primarily for the Executive Government and
expert bodies like the Pay Commission and not for Courts but we must hasten to
say that where all things are equal, that is where all relevant considerations
are the same, persons holding identical posts may not be treated differentially
in the matter of their pay merely because they belong to different departments.
Of course, if officers of the same rank perform dissimilar functions and the
powers, duties and responsibilities of the posts held by them vary, such
officers may not be heard to complain of dissimilar pay merely because the
posts are of the same rank and the nomenclature is the same." This Court
however observed that a differential treatment in appropriate cases can be
justified, when there are two grades based on reasonable grounds, and stated as
"It is well known that there can be and
there are different grades in a service, with varying qualification for entry
into a particular grade, the higher grade often being a promotional avenue for
officers of the lower grade. The higher qualifications for the higher grade,
which may be 109 either academic qualifications or experience based on length
of service reasonably sustain the classification of the officers into two
grades with different scales of pay. The principle of equal pay for equal work
would be an abstract doctrine not attracting Art. 14 if sought to be applied to
them." With respect we agree with the conclusion arrived at in the above
Judgment, that where all relevant considerations are the same, persons holding
identical posts and discharging similar duties should not be treated
The case on hand is much stronger than the
facts of the Randhir Singh's case. In that case, the drivers belonged to two
different departments. In this case, the Senior Draughtsmen, divided into two
groups are in the same department doing identical and same work. It is not a
case of different grades created on the ground of higher qualification either
academic or otherwise or an entitlement by any other criteria laid down. The
justification for this classification is by the mere accident of an earlier
entry into service. This cannot be justified.
The above decision of this Court has enlarged
the doctrine of equal pay for equal work, envisaged in Article 39(d) of the
Constitution of India and has exalted it to the position of a fundamental right
by reading it alongwith Article 14. This exposition of law had given rise to
some whispering dissent in that the doctrine had been extended beyond
permissible limits. The observations that the abstract doctrine of equal pay
for equal work has nothing to do with Art. 14, in the Judgment in Kishori
Mohanlal Bakshi v. Union of India (supra), rendered by a Constitution Bench of
this Court it is contended, may perhaps run counter to the observations in the
decision referred above. We do not think it necessary on the facts of this case
to dwelve at length upon the effect of this observation on a wider campus of
service jurisprudence in the context of equal pay for equal work which will
have to be attempted in an appropriate case.
For the purposes of the case on hand, it is
sufficient to note that the classification between two groups of Senior
Draughtsmen is 110 without any basis. They do the same work, they perform the
same duties, and as such the ratio of the decision in Randhir Singh's case
applies to this case with greater force. The Order passed by the Government of India
on 27th January, 1978, implementing this classification violates Art. 14 of the
Constitution and has to be struck down and we do so. In our opinion, it would
be a great injustice to continue the appellants on the scales of pay of
Draughtsmen even after promotion as Senior Draughtsmen, which is destructive of
all incentive and initiative in the service.
In our Judgment, the High Court was in error
in declining relief to the appellants. We accordingly, set aside the Judgment
of the High Court and allow this appeal and direct the Union of India to fix
the scale of pay of appellants at Rs. 425-15-50-EB-15-560-20-640-EB-20-700. The
appellants will be entitled to costs from the respondent No. 1.
M.L.A. Appeal allowed.