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
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
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
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-
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
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