Bihar State Beverages Corporation Ltd. vs Naresh Kumar Mishra

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1468­69 OF 2019 [Arising out of SLP (C) Nos. 29890­29891of 2017]

Bihar State Beverages Corporation Ltd. & Ors. .. Appellants

Versus

Naresh Kumar Mishra & Ors. .. Respondents

JUDGMENT

M. R. Shah, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

common judgment and order passed by the Division Bench of the

High Court of Judicature at Patna dated 19.7.2017 in Letters

Patent Appeal No. 162 of 2016 in CWJC No. 9760 of 2012 and in

Letters patent Appeal No. 568 of 2016 in CWJC No. 3224 of Signature Not Verified SUSHIL KUMAR RAKHEJA 2012, by which the Division Bench has allowed the said Letters Digitally signed by

Date: 2019.02.05 17:42:07 IST Reason:

Patent Appeals and has set aside the order passed by the learned 2

Single Judge passed in CWJC No. 9760 of 2012 and CWJC No.

3224 of 2012 dismissing the said writ petitions and,

consequently, allowing the petitions by holding that the

respective original Writ Petitioners – Respondents herein, the

employees of the Appellant – Bihar State Beverages Corporation

Limited (hereinafter referred to as the “Corporation”) are entitled

to the 6th Pay Revision, the Appellant Corporation has preferred

the present Appeals.

3. That all the original Writ Petitioners are working with the

Appellant Corporation on different posts since 2006. That the

Appellant Corporation came into existence in view of the decision

of the State Government in the year 2006 when it was

incorporated as a Government Company in terms of Section 617

of the Companies Act with its main objective being to improve the

excise revenue of the Government of Bihar. It appears that a

decision was taken not to make any appointment in the

Corporation by direct recruitment, but to bring the employees by

way of contract/deputation from amongst the employees of the

other Board and Corporation and also from retired employees of

the Board and/or Corporation of the State or the Central

Government. Therefore, as such, there is not a single employee 3

working with the Corporation appointed by the Corporation by

way of direct recruit. The Appellant Corporation issued an

Advertisement on 18.8.2006 for making appointment by way of

contract/deputation of the employees of other Board and

Corporation and also from the retired employees of the Board

and/or Corporation of the State or Central Government. Such

appointment was to be made on the post of Manager, Accounts

Officer, Accountant, Assistant Accountant, Depot Manager etc.

The advertisement also prescribed pay scale which was then

prevalent in the State Government as per the recommendation of

the 5th Pay Revision Committee. The respective original Writ

Petitioners in both the writ petitions were the employees of the

Bihar State Corporation Coordinating Unit (BISCOMAUN); Bihar

State Pharmaceutical and Chemical Development Corporation;

Bihar State Handloom and Handicraft Development Corporation;

Sone Command Area Development Agency; Land Mortgage Bank;

Pandaul Co­operative Spinning Mills Ltd., as the case may be.

That, all of them applied pursuant to the aforesaid

advertisement. All of them were selected on various posts in the

Corporation.

4

3.1 It appears that the employees working with the Corporation

were denied the benefit of the pay scale as per the

recommendations of the 6th Pay Revision Committee. It appears

that, as such, the Board of Directors of the Corporation in its

meeting dated 18.5.2010 resolved that the employees appointed

on deputation/contract would be granted revised pay scale.

However, the Finance Department raised an objection against

grant of revision of pay scale as per the 6 th Pay Revision

Committee to the employees on deputation and/or contract basis

working with the Appellant Corporation and advised the

Corporation to grant the benefit of 6th Pay Revision Committee

only to the employees of the Corporation and not the employees

working in the Corporation on deputation. It appears that,

thereafter, the Board of the Corporation in its meeting passed a

resolution on 27.3.2012 (as per the Corporation, the said

resolution was passed in the light of the letter dated 30.11.2011

of the State Government) and it was resolved that all those

employees working with the Appellant Corporation on deputation

shall be paid the pay scale payable in their parent Corporation

and deputation allowance.

5

3.2 Therefore, the original Writ Petitioners preferred the

aforesaid writ petitions before the High Court for an appropriate

direction to the Corporation to grant them the pay scale of 6 th Pay

Revision Committee with effect from 1.1.2006 notionally and

financial benefit with effect from 1.4.2007. In CWJC No. 9760 of

2012, one additional prayer was made for quashing of the

resolution of the Board of Directors dated 27.3.2012.

4. That the learned Single Judge though found that if the

resolution dated 27.3.2012 is implemented, in that case, there

will be disparity in the payment of salary to the original writ

petitioners and other employees of the Corporation working on

deputation and doing the same nature of work for the same post,

dismissed both the petitions on the ground that if the original

Writ Petitioners who are on deputation are given the pay scale of

the 6th Pay Revision Committee, the other employees working in

the parent Corporation would be getting the less salary as their

respective parent Corporations/Boards have not implemented

and/or granted the benefit of the 6th Pay Revision Committee. By

dismissing the writ petitions, learned Single Judge also

considered Rule 282 and 283 of the Bihar Service Code. 6

However, while dismissing the petitions, the learned Single Judge

gave the liberty to the writ petitioners to file the individual

representation explaining the disparity in the matter of payment

of their salary viz­a­viz their counter­part working on the same

post and doing the same nature of work and directed the

Corporation to take an appropriate decision. Learned Single

Judge also observed that if such decision is in favour of the Writ

Petitioners, then the said decision shall be given effect from

15.5.2012, the date on which the Corporation’s decision dated

27.3.2012 was implemented.

4.1 Feeling aggrieved and dissatisfied with the judgment and

order of the learned Single Judge dismissing the writ petitions,

the original Writ Petitioners preferred the aforesaid Letters Patent

Appeal No. 112 of 2016 and Letters Patent Appeal No. 568 of

2016. That, by impugned common judgment and order, the

Division Bench has allowed both the Letters Patent Appeals and

quashed and set aside the common judgment and order passed

by the learned Single Judge and consequently the resolution of

the Corporation dated 27.3.2012 and directed the Corporation to

follow the “Principle of Equal wages for equal work” in the matter

of grant of pay scale. The Division Bench also directed the 7

Corporation to pay the revision of pay scales in terms of the 6 th

Pay Revision Committee and resolution of the Board of Directors

dated 18.5.2010.

4.2 Feeling aggrieved and dissatisfied with the impugned

common judgment and order passed by the Division Bench, the

Bihar State Beverages Corporation Ltd. and others have preferred

the present appeals.

5. Learned counsel appearing on behalf of the Appellant

Corporation has vehemently submitted that, in the facts and

circumstances of the case, the Division Bench of the High Court

has erred in quashing and setting aside the resolution of the

Corporation dated 27.3.2012, as well as has materially erred in

directing the Appellant Corporation to grant pay scale to the

Respondents in terms of 6th Pay Revision Committee. It is

vehemently submitted by the learned counsel appearing on

behalf of the Appellant Corporation that while passing the

impugned judgment and order and granting the reliefs, the

Division Bench has not properly appreciated and/or considered

the provisions contained under Rule 282 and 283 of the Bihar

Service Code. It is submitted that, therefore, the impugned

judgment and order passed by the Division Bench of the High 8

Court is thus contrary to the statutory provisions, more

particularly, Rule 282 and 283 of the Bihar Service Code. It is

submitted that considering Rule 282 and 283 it was decided to

pay salaries to the Respondents herein in the scale which they

are/were getting in their parent organizations. It is submitted

that, therefore, the Resolution dated 27.3.2012 cannot be said to

be either discriminatory and/or violative of Articles 14 and 16 of

the Constitution of India.

5.1 It is further submitted by the learned counsel appearing on

behalf of the Appellant Corporation that, as such, the Appellant

Corporation had not fixed any scale for any post before engaging

any of the Respondents. It is submitted that the only standard

fixed by the Corporation was the pay scale received by them in

their parent organization and as all the Respondents are from

different Boards/Organizations, they cannot claim parity in the

pay scale from the Corporation, since the Corporation does not

have permanent employees of its own and the Respondents have

not even been absorbed by the Appellant Corporation.

5.2 It is further submitted by the learned counsel appearing on

behalf of the Appellant Corporation that, even otherwise, the

Division Bench of the High Court has materially erred in granting 9

the reliefs by applying the “Principle of equal pay for equal work”.

It is submitted that as the Respondents are “not equal” to the

State Government employees nor employees of the Appellant

Corporation and, therefore, the “Principle of equal pay for equal

work” shall not be applicable. It is submitted that as held by this

Court in State of Haryana v. Charanjeet Singh (2006) 9 SCC

321, the “Principle of equal pay for equal work” cannot apply

unless there is a complete and wholesale identity between two

groups.

5.3 It is further submitted by the learned counsel appearing on

behalf of the Appellant Corporation that the High Court has failed

to appreciate and consider the fact that the Appellant

Corporation has a separate legal entity and must always be

treated as a foreign service.

5.4 It is further submitted that none of the Respondents ­

original Writ Petitioners were appointed on permanent basis with

the Appellant Corporation and had their lien still continuing with

the parent organization and all are working with the Appellant

Corporation either on deputation or on contract basis. It is

submitted that none of the parent organizations of the respective

Respondents has yet implemented the 6 th PRC. It is submitted 10

that, therefore, as the Respondents were working with the

Appellant Corporation on deputation and/or on contract basis,

shall not be entitled to the pay scale as per the 6 th PRC. It is

submitted that, therefore, the High Court has materially erred in

directing the Appellant Corporation to pay/grant pay scale to the

Respondents in terms of the 6th PRC.

5.5 Making the above submissions, it is prayed to allow the

present Appeals.

6. Both these appeals are vehemently opposed by the learned

counsel appearing on behalf of the original Writ Petitioners.

6.1 It is vehemently submitted by the learned counsel appearing

on behalf of the Respondents herein – original Writ Petitioners

that the impugned judgment and order passed by the Division

Bench of the High Court is absolutely in line with Rule 282 and

283 of the Bihar Service Code, which permits the organization in

which a Government employee is sent on deputation to offer and

pay more benefits/salary to the extent of 25%. It is submitted

that, even otherwise, Rule 282 and 293 of the Bihar Service Code

shall not be applicable as none of the Respondents was an

employee of the Government.

11

6.2 It is further submitted by the learned counsel appearing on

behalf of the Respondents herein that, even otherwise, on the

“Principle of Equal Pay for Equal Work” and having found that

there cannot be any separate pay scale for the employees of the

Corporation doing the same/similar work. It is submitted that,

as such, even the learned Single Judge also specifically observed

that there is a disparity in the pay scale amongst the employees

of the Corporation itself and, therefore, even the learned Single

Judge also allowed/permitted the original Writ Petitioners to

make a representation to the Corporation.

6.3 It is further submitted by the learned counsel appearing on

behalf of the Respondents herein that at the time when the

advertisement was issued inviting the applications, in the

advertisement itself, specific pay scales against the respective

posts were mentioned. It is submitted that, thereafter, to pay

anything less than what was stated in the advertisement would

be changing the conditions of service, which is not permissible.

6.4 It is submitted that, therefore, having specifically found that

there shall be disparity in the pay scale amongst the employees of

the Corporation, the same shall be violative of Article 14 of the

Constitution of India, even applying the “Principle of Equal Pay 12

for Equal Work”, the High Court has rightly quashed and set

aside the Resolution dated 27.3.2012.

6.4 Now, so far as the impugned judgment and order passed by

the Division Bench of the High Court directing the Appellant

Corporation to grant the pay scale to the Respondents as per the

6th PRC is concerned, it is submitted that, as such, the

Corporation itself in the year 2010 took a conscious decision to

adopt and grant the benefit of 6 th PRC to the employees of the

Corporation. However, it was on the advice of the Finance

Department, the Corporation did not grant the benefit. It is

submitted that the Finance Department advised that the benefit

of 6th PRC can be given to the permanent employees of the

Corporation and may not be given to the employees who are on

deputation or on contract basis. It is submitted that it is an

admitted position that there is not a single employee working in

the Corporation who is appointed on permanent basis and the

entire staff/employees of the Corporation are either on

deputation or contract basis who are/were employees of other

Boards/Corporations. It is submitted that, therefore, the

Division Bench of the High Court has rightly observed that such

an advice of the Finance Department is a non­application of 13

mind. It is submitted that, therefore, the High Court has rightly

granted the relief and has rightly directed the Appellant

Corporation to pay the pay scale as per the 6 th PRC as per their

own decision in 2010.

6.5 Making the above submissions, it is prayed to dismiss the

present appeals.

7. Heard learned counsel appearing on behalf of the parties at

length.

7.1 At the outset, it is required to be noted that by impugned

judgment and order the Division Bench of the High Court has

directed the Appellant Corporation to grant the benefit of pay

scale to the Respondents herein – original Writ Petitioners as per

the 6th PRC, as per the decision of the Corporation itself in 2010.

By the impugned judgment and order, the High Court has also

quashed and set aside the resolution of the Corporation dated

27.3.2012, by which it was resolved to pay the salary to the

employees of the Corporation as is being paid to the employees

working in the parent organizations.

8. Now, so far as the quashing and setting aside the resolution

dated 27.3.2012 by which the Corporation resolved to pay salary

to the employees of the Corporation as is being paid in the parent 14

Board/parent organization is concerned, it is required to be

noted that it is not in dispute that the respective original Writ

Petitioners are on deputation from different

Boards/Organizations. Therefore, if the resolution dated

27.3.2012 is permitted to be implemented, in that case, there

shall be disparity in the pay scale/salary of the employees of the

Corporation doing the same/similar work. There may be

different pay scales/salaries in the respective parent

organizations. However, when they are working with the

Corporation and doing the similar work, they have to be paid the

salary which is paid to other employees doing the same/similar

work. It is not in dispute that the employees working on different

posts in the Corporation are doing the same/similar work.

Therefore, the Division Bench of the High Court has rightly

applied the ‘Principle of Equal Pay for Equal Work’ and has

rightly quashed and set aside the resolution dated 27.3.2012.

8.1 Challenge to the resolution dated 27.3.2012 is also required

to be considered from another angle. At the time of

advertisement and inviting the applications, the employees were

offered the specific pay scales against respective posts. It

appears that the pay scale which was offered and thereafter paid 15

by it till the resolution dated 27.3.2012 was at par with the pay

scale paid to the Government employees as per the 5 th PRC.

Therefore, thereafter, to pay any salary/pay scale lesser than

what was offered at the time of inviting the applications would be

changing the conditions of service, which is not permissible.

8.2 Now, so far as the reliance placed upon Rule 282 and 283 of

the Bihar Service Code by the Appellant Corporation is

concerned, even on considering Rule 282 and 283 of the Bihar

Service Code, it cannot be said that the person sent on

deputation cannot be paid any more salary/emoluments than

what was paid to the Government servant while working with the

Government. Rule 283 reads as under:

“Rule 283: (a) The pay which a Government servant is to receive in foreign service shall be precisely specified in the order sanctioning his transfer. If it is intended that he shall receive any remuneration, or enjoy any concession of pecuniary value, in addition to pay proper, the exact nature of such remuneration, or concession shall be similarly specified; and no Government servant shall be permitted to receive any remuneration or to enjoy any concession which is not to be so specified.

(b) In determining an appropriate rate of pay, the authority sanctioning a transfer to foreign service, shall take into account the value of any concessions which the Government servant may be permitted to enjoy, such as – 16

(i) The payment by the foreign employer of contributing towards, leave salary and pension;

(ii) the grant of free residential accommodation and any benefit or advantages connected therewith; and

(iii) the grant of traveling allowance at special rates, and the use of tents, conveyances, animals etc., belonging to the foreign employer.

(c) The terms granted to a Government servant who is transferred to foreign service shall not be so greatly in excess of remuneration which he would receive in Government service, as to render foreign service appreciably more attractive than Government service.

(d) No order of transfer to foreign service shall be issued by the State Government without previous consultation with the Finance Department.

(e) In cases where the power to sanction such transfer has been delegated to a subordinate authority, the initial pay of the Government servant transferred shall not, without the special orders of the State Government, exceed by more than 25 percent, the substantive pay last drawn by him in Government service and no concessions in addition to pay shall be sanctioned except the following:­ (i) the payment by the foreign employer of contributions towards leave salary and pensions; and (ii) the grant of travelling allowance on the scale prescribed in the Bihar Travelling Allowance Rules.”

8.3 On fair reading of Rule 283(c) and Rule 283(e), it can be

seen that it is permissible for the foreign service to pay something

more than what the employees were getting in the parent

department. Therefore, the interpretation on behalf of the 17

Corporation on reading Rule 283 that the employee sent on

deputation to a foreign service has to be paid the same

salary/pay scale which he was getting in the parent department,

cannot be accepted. Therefore, reliance placed on Rule 282 and

283 of the Bihar Service Code while passing the resolution dated

27.3.2012 was absolutely either misplaced and/or on mis­

interpretation and, therefore, the same is rightly set aside by the

High Court. We are in complete agreement with the view taken

by the Division Bench in quashing the resolution dated

27.3.2012.

9. Now, so far as the impugned judgment and order passed by

the High Court directing the Appellant Corporation to grant pay

scale to the Respondents herein – original Writ Petitioners as per

the 6th PRC is concerned, it is required to be noted that, as such,

the Appellant Corporation itself took a conscious decision in the

year 2010 to grant the benefit of 6th PRC to the employees

working with the Corporation. However, on the advice of the

Finance Department that the Corporation may grant the benefit

of 6th PRC to their permanent employees and not to the

employees on deputation, the Corporation thereafter took a

decision not to grant the benefit of the pay scale as per the 6 th 18

PRC. As rightly held by the Division Bench of the High Court, the

advice by the Finance Department was non­application of mind,

inasmuch so far as the Corporation is concerned, there is not a

single employee appointed by the Corporation on permanent

basis and the entire staff is either on deputation or on contract

basis from other Boards/organizations. Therefore, the Division

Bench of the High Court has rightly directed the Appellant

Corporation to grant the pay scale to the Respondents – original

Writ Petitioners as per the 6th PRC. However, at the same time, it

is to be clarified that they will get the pay scale as per the 6 th PRC

so long as they continue to work with the Appellant Corporation

and as and when they are repatriated, in that case, they shall be

governed by the pay scale paid to the employees in the parent

Board/Organization.

10. In view of the above submissions and for the reasons stated

hereinabove, both the present Appeals fail and they deserve to be

dismissed and are accordingly dismissed. However, it is clarified

that the original Writ Petitioners shall be entitled to the pay scale

as recommended by the 6th PRC so long as they work in the

Appellant Corporation and as and when and in case they are

repatriated to their parent Board/Organization they shall be 19

governed by the pay scales paid to the employees of the

concerned parent Board/Organization. No costs.

……………………………………J. (L. NAGESWARA RAO)

……………………………………J. (M. R SHAH)

New Delhi;

February 05, 2019.