Inder
Singh & Ors Vs. Vyas Muni Mishra & Ors [1987] INSC 213 (14 August 1987)
DUTT,
M.M. (J) DUTT, M.M. (J) MISRA RANGNATH
CITATION:
1987 SCR (3) 972 1987 SCC Supl. 257 JT 1987 (3) 384 1987 SCALE (2)306
ACT:
U.P.
Cane Development (Fourth Class) Service Rules, 1972/U. P. Ganna Paryavekshak
(111) Service Rules, 1972:
Ganna
Gram Sewaks / Cane Supervisors--Posts carrying different duties, basic
educational' qualifications--Merger of--Whether permissible and legal.
Constitution
of India, Arts. 226, 136, 39(d): Principle of equal pay for equal
work--Applicability of--Two different groups of persons performing different
duties--Promotional post having higher qualifications than the feeder
post--Jurisdiction of the court to order merger-Whether proper.
Service
Law: Merger of two cadres into one or bifurcation of a cadre--Within
jurisdiction and authority of executive government-Not of the court.
HEADNOTE:
The
U.P. Cane Development (Fourth Class) Service Rules, 1972 prescribe minimum
qualification of High School Examina- tion for the post of Ganna Gram Sewak.
The U.P. Ganna Parya- vekshak (III) Services Rules, 1972 lay down the basic
qualification of Intermediate (Agriculture) or equivalent or High School with
two years' Diploma in Agriculture for the post of Cane Supervisor, and provide
for filling 50 per cent of these posts by promotion from amongst permanent
Ganna Gram Sewaks. The Cane Commissioner by his letter dated March 10, 1975
recommended to the State Government that the minimum educational qualification
for Ganna Gram Sewaks should be Intermediate. No amendment, however, has been
made to the said Rules.
The
duties that are to be performed by the Ganna Gram Sewaks are preparation of
progress report, survey of cane areas, and development programme. The Cane
Supervisors are responsible for plant protection, inputs godown and nurseries
in the areas of Ganna Gram Sewaks.
The
respondent No. 1 flied a writ petition under Art. 226 of the 973 Constitution
praying for a writ of mandamus directing the State Government to merge the post
of Ganna Gram Sewaks and the Cane Supervisors into one cadre.
The
High Court took the view that although the minimum educational qualifications
required were High School for Ganna Gram Sewaks and Intermediate in Agriculture
for Cane Supervisors, since 1975 the minimum qualification became Intermediate
in Agriculture for both Ganna Gram Sewaks and Cane Supervisors, that the nature
of duties performed by the members of these two categories of posts was the
same, and relying upon the principle of equal pay for equal work, as contained
in Art. 39(d) of the constitution allowed the writ petition and directed the
State Government to merge the said posts into one cadre of Ganna Sahayak.
The
State, and the Cane Supervisors preferred appeals to this Court.
Allowing
the appeals,
HELD:
1.1 The High Court exceeded its jurisdiction in directing the merger of the
posts of Ganna Gram Sewaks and Cane Supervisors. [977E]
1.2
The merger or bifurcation of a cadre is an executive act. It is for the State
to consider whether two groups of persons working under two distinct posts
perform the same kind of duties or not, and whether in implementing the
directive principle, as contained in Art. 39(d) of the Constitution, it is
necessary to merge the two posts into one cadre or post. [980AB]
1.3
The principle of equal pay for equal work requires on the face of it that the
work to be performed by two groups of persons must be equal. The Court may in
such cases direct equal pay by way of removing unreasonable discrimination and
treating the two groups, similarly situated, equally. [977H; 980CD] In the
instant case, the nature of the duties that are performed by the members of the
two categories of posts are different. The Ganna Gram Sewaks are responsible
for preparation of progress report, survey of. the cane areas and development
programme. On the other hand Cane Supervisors are responsible for plant
protection, inputs godown and nurseries in the areas of Ganna Gram Sewaks. The
974 minimum qualification required for each post is also different. Both of
them function more or less independently.
Furthermore,
the post of Cane Supervisor is a promotional post vis-a-vis the post of Ganna
Gram Sewak. It will, there- fore, be beyond the jurisdiction of the court to
implement the principle of equal pay for equal work inasmuch as such
implementation will practically result in the amalgamation of the two posts.
[978A, 979EF, 978B, 979G]
2.
Under the Rules the minimum qualification required for the Ganna Gram Sewaks is
High School or equivalent. So long as the Rules are amended and the minimum
qualification is not enhanced to Intermediate in Agriculture, the Cane
Development Department of the State cannot prescribe or insist on a minimum
qualification of Intermediate in Agriculture. The High Court, therefore, was
not justified in relying upon the letter of the Cane Commissioner dated March
10, 1975 in preference to the Rules framed' under Article 309 of the
Constitution for taking the view that the minimum qualification for that post
has been Intermediate in Agriculture since 1975. [879CE, 978H]
3.
Article 39(d) of the Constitution lays down the directive principle of equal
pay for equal work for both men and women. The directive principles contained
in Part-IV of the Constitution are not enforceable in any court of law. It is a
constitutional goal that has to be achieved at the instance of the State.
[979H-980A]
Civil
Appellate Jurisdiction: Civil Appeal No. 4115 and 4116 of 1985.
From
the Judgment and Order dated 12.4.1985 of the Allahabad High Court in Civil
Misc. Writ Petn. No. 3441 of 1984. J.P. Goyal, Rajesh for the Appellants in
C.A. No. 41 15 of 1985.
Anil
Dev Singh, Mrs. S. Dikshit and Sudhir Kulshreshta for the Appellants in C.A.
No. 4116 of 1985. R. Ramachandran for the Respondents.
The
Judgment of the Court was delivered by DUTT, J. These two appeals by special
leave, one preferred by the State of U.P. and the other by the Cane Super-
visors of the Cane Development Department, U.P., are directed against the
judgment of 975 the Allahabad High Court directing the State Government to
merge the posts of Ganna Gram Sewaks and Ganna Supervisors into the cadre of
Ganna Sahayak in the pay scale of Rs.400- 615 with effect from 1-7-1979.
In
the hierarchy of field officers in the Cane Development Department, U.P., the
post of Ganna Gram Sewak is at the bottom. The next higher post is the post of
Cane Super- visor. Under the Cane Development (Fourth Class) Service Rules,
1972 framed under Article 309 of the Constitution of India, the posts of Ganna
Gram Sewaks are filled by direct recruitment and the minimum qualification
prescribed there- for by Rule 9(3) of the said Rules is that a candidate for
recruitment in the post of Ganna Gram Sewak must have passed the High School
Examination from the Board of High Schools and Intermediate Education, U.P. or
an equivalent examination and he must know Hindi in Devnagri script. Under the
Uttar Pradesh Ganna Paryavekshak (III) Service Rules, 1978, also framed under
Article 309 of the Constitution of India, 50 per cent of the posts of Cane
Supervisors are to be filled by direct recruitment and the remaining 50 per
cent by promotion on the basis of seniority from amongst permanent Ganna Gram Sewaks
of the concerned region. The basic qualification for the post of Cane
Supervisor is Intermediate (Agriculture) or equivalent or High School with two
years Diploma in Agriculture. The duties that are to be performed by the Ganna
Gram Sewaks are preparation of progress report, survey of the cane areas and
development programmes. The Cane Supervisors are responsible for plant
protection, inputs godown and nurseries in the areas of Ganna Gram Sewaks.
The
State of U.P. appointed a Second Pay Commission in the year 1979. The Ganna
Gram Sewaks submitted a representation to the Commission demanding that since
their qualifications were similar to those of Cane Supervisors and they
performed the same kind of duties, they should get the same pay scale as that
of the Cane Supervisors. It appears that on the suggestion of the Pay
Commission, the State Government appointed a Task Force Committee. The Task
Force Committee in its report recommended the merger of the posts of Ganna Gram
Sewaks and Cane Supervisors into one group to be designated as Ganna Sahayaks
and allotted an equal field of operation. It was observed that the merger being
effected would satisfy the demand of the Ganna Gram Sewaks for the equalisation
of their pay scale with that of the Cane Super- visors. The said recommendation
was made by the Task Force Committee on the ground that there was no special
difference between these two categories of posts in regard to 976 the duties
performed by the members of each category. The Second Pay Commission, however,
did not accept the recommendation made by the Task Force Committee for the
merger of these two categories of posts .into one category, namely, Ganna
Sahayak. After taking into consideration the minimum academic qualification and
the nature of duties for each category, the Second Pay Commission, inter alia,
recommended the revision of the pay scales as follows:- CANE DEVELOPMENT
DEPARTMENT S. No. Name of Post Pay Scale Existing Proposed
46.
Cane Supervisor/ 230-385 400-615 Seed Asstt. Ordinary Ordinary Grade 250-425
510-675 (Selection After Grade) After 10 years of service Selection Grade ( 15%
Selection Grade on the post of Supervisor)
47.
Ganna Gram Sewak 185-265 325-495 Ordinary Ordinary Grade 200-320 400-540
Selection after 15 years Grade of service Selection Grade on 15% posts.
The
recommendation of the Second Pay Commission was considered by the Review
Committee and, thereafter, by the Cabinet Sub-Committee. There is a dispute
between the par- ties as to whether the Cabinet Sub-Committee had accepted the
recommendation made by the Task Force Committee. Be that as it may, the State
Government accepted the recommendations of the Second Pay Commission only with
a slight modification that instead of a pay scale of Rs.325-495 for Ganna Gram
Sewaks, it would be Rs.330-495.
One
of the Ganna Gram Sewaks, Shri Vyas Muni Mishra, the respondent No. 1, filed a
writ petition before the Allahabad High Court praying for a writ of mandamus
directing the State Government to merge the posts of Ganna Gram Sewaks and Cane
Supervisors into one cadre of 'Ganna Sahayak'. The High Court took the view
that although the minimum educational qualifications required were High School
for Ganna Gram Sewaks and Intermediate in Agriculture for Cane Supervisors,
since 1975 the minimum qualification for both Ganna Gram Sewaks and Cane
Supervisors became Intermediate in Agriculture. Further, the High Court was of
the view that the nature of duties performed by the members of these two
categories of posts was the same. Accordingly, relying upon the principle of
equal pay for equal work, as contained in Article 39(d) of the Constitution,
the High Court allowed the writ petition and directed the State Government to
merge the posts of Ganna Gram Sewak and that of Cane Supervisor into one post
as Ganna Sahayak in the pay scale of Rs.400- 615 with effect from July 1, 1979.
The State of U.P. and the Cane Supervisors being aggrieved by the judgment of
the High Court have preferred the above appeals.
At
the outset it may be said that the High Court exceeded its jurisdiction in
directing the merger of the two posts. It may be that the Task Force Committee
and the Review Committee had recommended for the merger, but it was for the
State Government to consider whether such merger should be made or not. The
State Government after consideration of the relevant reports and
recommendations accepted the recommendation of the Second Pay Commission only
with regard to the revision of the pay scale of the Ganna Gram Sewaks with the
slight modification by an increase of Rs. 5 at the initial stage of the
recommended pay scale. The question whether two posts should be merged into one
or not is absolutely within the jurisdiction and authority of the Executive
Government. However much the High Court was influenced by the principle of
equal pay for equal work for both men and women as contained in Article 39(d)
of the Constitution, the High Court was not justified in exceeding its
jurisdiction for giving effect to the said doctrine.
The
principle of equal pay for equal work requires on the face of it that the work
to be performed by two groups of persons must be 978 equal. It has been already
noticed that the duties that had to be performed by the Ganna Gram Sewaks are
preparation of progress report, survey of the cane areas and development
programmes. On the other hand, the Cane Supervisors are responsible for plant
protection, inputs godown and nurseries in the areas of Ganna Gram Sewaks. Thus
the nature of duties that are performed by the members of these two categories
of posts is different. It has been observed by the Second Pay Commission that
the Department has so fixed the duties of the two functionaries that both of
them now function more or less independently. The High Court did not discuss in
detail as to whether the Ganna Gram Sewaks and the Cane Supervisors perform the
same duties. The High Court has only referred to an observation in the report
of the Task Force Committee that there were not many differences in the duties
performed by these two categories of officers. As has been stated already, the
Second Pay Commission did not accept the recommendation of the Task Force
Committee for the merger of the two posts into one. It is true that the Cane
Supervisors are not doing any supervision of the work of the Ganna Gram Sewaks,
but in view of the nature of duties performed by both, as mentioned above, it
is difficult to hold that both perform the same kind of duties. We have also
looked into the reports of the Task Force Commit- tee and the Review Committee.
In our opinion, these two Committees have not properly dealt with the nature of
duties performed by the Ganna Gram Sewaks and Cane Supervisors, although both
these Committees have recommended the merger of the two posts. As soon as,
therefore, it is held that the two groups of persons do not perform the same
kind of duties, the question of equal pay for equal work does not arise.
In
directing merger of the two posts, the High Court has greatly relied upon the
fact that although the minimum educational qualification for Ganna Gram Sewaks
was High School, since 1975 the minimum educational qualification for the Ganna
Gram Sewaks has been Intermediate in Agriculture.
In
other words, according to the High Court the minimum educational qualification
required for both these posts is Intermediate in Agriculture. We have already
referred to the Rules framed under Article 309 of the Constitution under which
the minimum qualification for the posts of Ganna Gram Sewaks has been
prescribed as High School or equivalent examination and for the Cane
Supervisors as Intermediate (Agriculture) or equivalent or High School with two
years' Diploma in Agriculture. The minimum qualifications, as prescribed, have
not yet been changed by the amendment of the said Rules. In entertaining the
view that the minimum qualification for the Ganna Gram Sewaks has been since
1975 Intermediate in 979 Agriculture, the High Court has placed reliance upon a
letter dated March 10, 1975 addressed by the Cane Commissioner, U.P,, to the
Deputy Secretary, Cane Development Department, Government of U.P. In that
letter, it was recommended that the minimum educational qualification for the
Ganna Gram Sewaks should be Intermediate in accordance with the proposal of the
Ganna Gram Sewaks' Union, U.P. It was, accordingly, requested by the Cane
Commissioner in the said letter that the Government might consider the minimum
qualification as recommended. It is the case of the State of U.P. that the said
letter was issued-in connection with 600 new posts of Ganna Gram Sewaks to be
created under non-statutory bodies, namely, Sakkar Nidhi and Ganna Board. It is
contended that these 600 posts have nothing to do with the posts of Ganna Gram
Sewaks under the Cane Development Department of the State of U.P. In our
opinion, the High Court should not have placed any reliance upon any such
recommendation made by the Cane Commissioner, when, under the Rules framed
under Article 309 of the Constitution, the minimum qualification required for
the Ganna Gram Sewaks is High School or equivalent. So long as the Rules are
amended and the minimum qualification is not enhanced to Intermediate in
Agriculture, the Cane Development Department of the Government cannot prescribe
or insist on a minimum qualification of Intermediate in Agriculture. The Second
Pay Commission could not also equate the posts of Ganna Gram Sewaks with that
of Cane Supervisors on the ground that the minimum qualification for the two posts
are different. The High Court was, therefore. not justified in relying upon the
said letter of the Cane Commissioner in preference to the Rules framed under
Article 309 of the Constitution. In our view, there- fore, not only the nature
of duties attached to each post is different, but also the minimum
qualification required for each post is also different.
As
stated earlier, the posts of Ganna Gram Sewaks are filled by direct
recruitment. So far as .the posts of Cane Supervisors are concerned, 50 per cent
of the same are filled by promotion from the posts of Ganna Gram Sewaks and the
remaining 50 per cent are filled by direct recruitment.
Thus,
the post of Cane Supervisor is a promotional post vis-a-vis the post of Ganna
Gram Sewak. In our view where, as in the instant case, of the two posts, one
being the promotional post and the other being the feeder post, it will be
beyond the jurisdiction of the Court to implement the principle of equal pay
for equal work inasmuch as such implementation will practically result in the amalgamation
of the two posts leading to great administrative difficulties.
Article
39(d) of the Constitution lays down the Directive Principle of 980 equal pay
for equal work for both men and women. The directive principles contained in
Part-IV of the Constitution are not enforceable in any court of law. It is a
constitutional goal that has to be achieved at the instance of the State.
Merger
or bifurcation of a cadre is an executive act and normally the Court does not
deal with it. It is for the State to consider whether two groups of persons
working under two distinct posts perform the same kind of duties or not and
whether in implementing the directive principle, as contained in Article 39(d)
of the Constitution, it is necessary to merge these two posts into one cadre or
post. If the State Government is of the view that it is necessary that there
should be a merger of the two posts into one post, the State Government has to
take steps in that regard by framing proper rules with regard to seniority,
promotions, etc. But, when two groups of persons are in the same or similar
posts performing same kind of work, either in the same or in the different
Government departments, the Court may in suitable cases direct equal pay by way
of removing unreasonable discrimination and treating the two groups, similarly
situated, equally. In the facts and circumstances of the instant case, we are
of the view that the High Court was not justified in directing a merger of the
two posts, namely, the posts of Ganna Gram Sewaks and Cane Supervisors.
For
the reasons aforesaid, the impugned judgment of the High Court is set aside and
the writ petition is dismissed.
Both
these appeals are allowed. There is, however, no order as to costs.
This
judgment, however, will not prevent the State of U.P. from considering the
merger of these two posts and the consequent equalisation of pay.
P.S.S,
Appeals allowed.
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