Punjab State Electricity Board And Anr. vs Thana Singh And Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 193 OF 2019 (Arising out of SLP(C) No.10896 OF 2011)

PUNJAB STATE ELECTRICITY BOARD …. Appellants AND ANOTHER

VERSUS

THANA SINGH AND OTHERS ….Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 28.09.2010

passed by the High Court of Punjab and Haryana at Chandigarh

dismissing the LPA No.713 of 2010 on the ground that the

respondents-Sub Fire Officers are entitled to parity of scales of pay

as the pay scale granted/revised to other classes of posts within

same group viz., Group XII of the Punjab State Electricity Board.

3. Brief facts of the case are as follows:-

Signature Not Verified

Respondents were inducted into the service of the Punjab Digitally signed by

State Electricity Board (PSEB) in the year 1978 and now they are MADHU BALA Date: 2019.01.08 16:49:30 IST Reason:

working as Sub Fire Officers in the appellant-Board. The pay scale

1 of the post of Sub Fire Officers was Rs.225-500 which was revised

with effect from 01.01.1978 to Rs.620-1200. Thereafter, by an order

dated 21.03.1989, the pay scale for the post of Sub Fire Officers

was revised to Rs.1640-2925 with effect from 01.01.1986 along with

the pay scales of other category of employees of the Board viz.

Head Clerks, Head Clerk-cum-Divisional Accountants and Internal

Auditors were revised. Subsequently, by an order dated 03.10.1990,

the pay scale of Head Clerks was revised from Rs.1640-2925 to

Rs.2000-3500 on the recommendation of the Pay Anomaly

Committee. Likewise, by the same order dated 03.10.1990, the pay

scale of the Internal Auditors was revised to the scale of

Rs.1800-3200; but the pay scale of the Sub Fire Officers was not

revised on par with Head Clerks and Internal Auditors. A

recommendation letter dated 25.03.1991 was written by the

Superintendent Engineer, GNDTP, Bhatinda to the Chief Engineer,

GNDTP, Bhatinda to consider the case of the Sub Fire Officers to

grant scale of pay on par with Head Clerks and Internal Auditors

stating that there will not be much financial burden, if the pay scales

of Sub Fire Officers are revised equal to other categories as only

five number of posts of Sub Fire Officers exist at GNDTP, Bhatinda

and RTP, Ropar. Relying on the said letter dated 25.03.1991 of the

Superintendent Engineer, GNDTP, Bhatinda, the respondents-Sub

2 Fire Officers submitted various representations to the appellant-

Board requesting for higher pay scale on the ground that the pay

scale to the post of Sub Fire Officers in the Punjab State

Government Department i.e. Fire Protection Department is

Rs.1800-3200 and therefore, the respondents-Sub Fire Officers

working in the appellant-Board are also to be given same scale of

pay.

4. The respondents-Sub Fire Officers filed CWP No.9294 of

1993 stating that the action of the appellant-Board in granting pay

scale less than the State Government employees is illegal,

unjustified, discriminatory and violative of Article 14 of the

Constitution of India. According to the respondents, there is no

difference in qualification for recruitment to the post of Sub Fire

Officers between the Board and the State Government and

therefore, there should not be any difference in the pay scale

between them.

5. The appellant-Board filed counter affidavit stating that the

Board is not bound to pay the same pay scale to the respondents-

Sub Fire Officers as are given by the Punjab Government to its

employees holding the same post. It was averred that Punjab State

Electricity Board is a statutory body constituted under the Electricity

3 Supply Act governed by its own regulations. It was averred that the

respondents-Sub Fire Officers cannot claim parity with other

categories viz. Head Clerks, Head Clerk-cum-Divisional

Accountants, Internal Auditors, etc. because all these posts belong

to different cadre than the cadre of the respondents-Sub Fire

Officers as the nature of work, duties, responsibilities and initial

qualifications for recruitment to these posts are different.

6. The learned Single Judge allowed the writ petition holding that

the Sub Fire Officers are within Group XII that included Head

Clerks, Head Clerk-cum-Divisional Accountants, Internal Auditors,

etc. therefore, Sub Fire Officers cannot be denied same scales of

pay when increased for other three classes of persons within Group

XII. However, the learned Single Judge rejected the respondent’s

plea claiming parity with the employees of the State Government.

Observing that the respondents are to be treated on par with other

three classes within Group XII of the Board, the learned Single

Judge allowed the writ petition.

7. The Division Bench of the High Court dismissed the appeal

filed by the appellant-Board holding that there is no basis for

differently treating the Sub Fire Officers included in Group XII. The

Division Bench has referred to the letter dated 25.03.1991 of the

4 Superintendent Engineer, GNDTP, Bhatinda stating that the cadre of

Sub Fire Officers is a small one with limited chances of promotion to

the higher posts i.e. Fire Officers and that by revising the scale of

Sub Fire Officers on par with others, there will not be much financial

burden on the Board. Being aggrieved, the appellant-Board is

before us.

8. Mr. Nidhesh Gupta, learned Senior counsel for the appellant-

Board has submitted that the respondents-Sub Fire Officers cannot

claim parity with other categories viz. Head Clerks, Head Clerk-

cum-Divisional Accountants, Internal Auditors, etc. because all

these posts belong to different cadre and the mode of recruitment

and the nature of duties and responsibilities are entirely different. It

was submitted that though the post of Sub Fire Officers is included

in Group XII, the nature of duties and responsibilities to each post in

Group XII are different and the respondents-Sub Fire Officers

cannot claim parity of pay scales with other posts in the same

group. It was contended that the learned Single Judge erred in

saying that merely because the post of Sub Fire Officers is

categorised in Group XII, they are to be treated on par with other

categories of posts in Group XII. It was urged that if the impugned

5 judgment is to be sustained, it will have huge financial implications

on the appellant-Board and the same is not sustainable.

9. Mr. Jaspal Singh M., learned counsel for the respondents

supporting the judgment of the learned Single Judge as well as of

the Division Bench of the High Court submitted that since the

respondents are included in Group XII, there cannot be any

discrimination in the scales of pay. It was submitted that when the

scales of pay were increased for other three classes of posts within

Group XII, similar revision of scale of pay ought to have been given

to the respondents also and the learned Single Judge as well as the

Division Bench rightly ordered the parity in scale of pay.

10. We have carefully considered the submissions and perused

the impugned judgment and the materials on record. The following

points arise for consideration in this appeal:-

(i) Whether Sub Fire Officers can claim parity of pay scale with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants, Internal Auditors, etc. merely on the ground that the post of Sub Fire Officers is categorised in Group XII?

(ii) Whether respondents are right in contending that grant of different scale of pay to Sub Fire Officers is discrimination and in violation of Article 14 of the Constitution of India?

6 11. It is fairly well settled that equation of pay scales must be left

to the Government and on the decision of the experts and the Court

should not interfere with it. Observing that equation of pay scales of

posts must be left to the Government and the experts, in Steel

Authority of India Limited and Others v. Dibyendu

Bhattacharya (2011) 11 SCC 122, this Court held as under:-

“26. In Union of India and Others v. S.L. Dutta and Another (1991) 1 SCC 505, Union of India and Others v. N.Y. Apte and Others (1998) 6 SCC 741, State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Kshetriya Kisan Gramin Bank v. D.B. Sharma and Others (2001) 1 SCC 353, this Court held that the determination that two posts are equal or not, is a job of the Expert Committee and the court should not interfere with it unless the decision of the Committee is found to be unreasonable or arbitrary or made on extraneous considerations. More so, it is an executive function to fix the service conditions, etc. and lies within the exclusive domain of the rule-making authority. (See also T. Venkateswarulu v. Executive Officer, Tirumala Tirupathi Devasthanams and Others (2009) 1 SCC 546.)”

12. In S.C. Chandra and Others v. State of Jharkhand and

Others (2007) 8 SCC 279, observing that the grant of pay scales is

a purely executive function and the court should not interfere with the

same, this Court held as under:-

“33. It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408. ………..

35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided

7 applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay).”

13. Observing that granting parity in pay scales depends upon the

comparative evaluation of job and equation of posts, this Court, in

SAIL, held as under:-

“30. ……….. the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.”

14. In the light of the above principles, the case of Sub Fire Officers

in PSEB requires to be examined whether they are entitled to parity in

pay scales as that of the Head Clerks, Head Clerk-cum-Divisional

Accountants, Internal Auditors, etc. PSEB is an autonomous body

constituted by Notification of the Punjab Government under Section 5

of the Electricity Supply Act, 1948 and the services under PSEB are

governed by the Punjab State Electricity Board (Revised Pay)

Regulations, 1988. The First Schedule relates to categorisation of

various groups and revised scales of pay for categories specified

8 thereunder. Group XII as it then stood in the year 1988 contains Sub

Fire Officers which reads as under:-

Group-XII : Scale: 1500-30-1560-40-2000-50-2400-60-2700-75-2925

1. Internal Auditor 620-1200 1500-2925

2. Head Clerk -do- -do-

3. Head Clerk-cum-Divisional -do- -do-

Accountant

4. Sub Fire Officer -do- -do-

15. In the year 1988, though the post of Sub Fire Officers has been

included in Group XII in one category as that of Head Clerks, Head

Clerk-cum-Divisional Accountants and Internal Auditors, the nature of

work, duties, responsibilities and initial qualifications for recruitment

and manner of recruitment to each post are different since all these

posts belong to different cadre. The respondents cannot claim as a

matter of right that they should be given the similar pay scale as are

given to the categories of posts such as Head Clerks, Head Clerk-

cum-Divisional Accountants and Internal Auditors.

16. For considering the equation of posts, the following factors had

been held to be determinative:-

1. The nature and duties of a post;

2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;

3. The minimum qualifications, if any, prescribed for recruitment to the post; and

4. The salary of the post (vide Union of India and Another v.

P.K. Roy and Others AIR 1968 SC 850).

9

17. After referring to P.K. Roy’s case, this Court, in SAIL, held as

under:-

“25. In State of Maharashtra and Another v. Chandrakant Anant Kulkarni and Others (1981) 4 SCC 130 and Vice-Chancellor, L.N. Mithila University v. Dayanand Jha (1986) 3 SCC 7, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in E.P. Royappa v. State of T.N. and Another (1974) 4 SCC 3 and Sub-Inspector Rooplal and Another v. Lt.

Governor Through Chief Secretary, Delhi and Others (2000) 1 SCC 644, wherein this Court following the earlier judgment in P.K. Roy AIR 1968 SC 850 held that the salary of the post alone may not be a determining factor, the other three criterion should also be fulfilled.”

18. The duties and nature of work of Head Clerks and Internal

Auditors are entirely different. Head Clerk works under XEN, Drawing

and Disbursement Officer and there is only one Head Clerk in the

Division Office. Head Clerk is the Head of the establishment in the

Divisional Office and total work of the establishment is under the

control of the Head Clerk. Head Clerk also maintains the leave and

other miscellaneous works for the Sub-divisions and the Division

Offices and also discharges administrative functions and thus, has

more responsibilities. Duty of an Internal Auditor is to audit the billing

of the Revenue Department of the Sub-division Office which includes

billing of domestic supply to large supply. Whereas the duty of the

Sub Fire Officer is entirely different viz., rush to the spot of

10 emergency along with firefighting equipment crew, direct and

supervise firefighting and rescue operations, arrange for extra fire

fighting equipments, if need be discharge mechanical foam, dry

chemical powder, etc. and inform the fire pump house for continuous

running of pumps and also inform Fire Officer/Sr.Xen/Fire and Safety

regarding incident. Thus, the work performed by the Sub Fire Officer

is entirely different from the nature of duties performed by the Head

Clerks and the Internal Auditors.

19. The appellant-Board being an autonomous body governed by

its own regulations, it was for the Board to classify its

employees/posts on the basis of qualifications, duties and

responsibilities of the posts concerned. If the classification has

reasonable nexus with the objective sought to be achieved, the Board

would be justified in prescribing different pay scales. Article 14 of the

Constitution of India would be applicable only when a discrimination

is made out between the persons who are similarly situated and not

otherwise. It is the duty of an employee seeking parity of pay to prove

and establish that they have been discriminated. In State of Haryana

and Another v. Tilak Raj and Others (2003) 6 SCC 123, this Court

held that “to claim a relief on the basis of equality, it is for the

claimants to substantiate a clear-cut basis of equivalence and a

11 resultant hostile discrimination before becoming eligible to claim

rights on a par with the other group vis-à-vis an alleged

discrimination.”

20. The person claiming parity must produce material before the

court to prove that the nature of duties and functions are similar and

that they are entitled to parity of pay scales. After referring to number

of judgments and observing that it is the duty of an employee seeking

parity of pay to prove and establish that he had been discriminated

against, this Court, in SAIL, held as under:-

“22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine of “equal pay for equal work” as enshrined under Article 39(d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on the person claiming such right. (Vide U.P. State Sugar Corpn. Ltd. and Another v. Sant Raj Singh and Others (2006) 9 SCC 82, Union of India and Another v. Mahajabeen Akhtar (2008) 1 SCC 368, Union of India v. Dineshan K.K (2008) 1 SCC 586, Union of India and Others v. Hiranmoy Sen and Others (2008) 1 SCC 630, Official Liquidator v. Dayanand and Others (2008) 10 SCC 1, U.P. SEB and Another v. Aziz Ahmad (2009) 2 SCC 606 and State of M.P. and Others v. Ramesh Chandra Bajpai (2009) 13 SCC 635)”.

21. Burden of establishing parity in pay scale and employment is

on the person claiming such right. There were neither pleadings nor

12 any material produced by the respondents to prove that the nature

of work performed by the Sub Fire Officers is similar with that of the

Head Clerks and the Internal Auditors to claim parity of pay scale.

As pointed out earlier, the burden lies upon the party who claims

parity of pay scale to prove similarity in duties and responsibilities.

In the writ petition, respondents have only claimed parity of pay

scale with those of the employees working under the Punjab

Government which was not accepted by the learned Single Judge.

Determination of parity or disparity in duties and responsibilities is a

complex issue and the same should be left to the expert body.

When the expert body considered revision of pay for various posts,

it did not revise the pay scale of Sub Fire Officers. When the expert

body has taken such a view, it is not for the courts to substitute its

views and interfere with the same and take a different view.

22. As pointed out earlier, though the Head Clerks, Head Clerk-

cum-Divisional Accountants and Internal Auditors were earlier placed

in the same group viz. Group XII; but educational qualifications

requisite for these posts and mode of recruitment are different.

Likewise, there is no similarity in the work performed by the

employees on those posts. Only in cases of complete similarity in the

nature of work, duties, responsibilities and promotional channels,

13 parity of pay scale can be claimed. Merely on the ground that Sub

Fire Officers are categorised in Group XII along with Head Clerks,

Head Clerk-cum-Divisional Accountants and Internal Auditors cannot

be a ground for seeking parity of pay scale. As submitted by the

learned Senior counsel for the appellant-Board, the nature of work,

duties, responsibilities and initial qualification for recruitment of each

post are entirely different as all these posts belong to different cadre.

23. That apart, though in the year 1988 there were only four posts

in Group XII, number of several posts have been subsequently

included. Vide Finance Circular No.44/89 dated 15.06.1989, seven

more posts were added in Group XII. Thereafter, vide Finance

Circular No.45/89 dated 26.06.1989, there was a further increase of

seven posts in Group XII. The fourteen posts which were added to

Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher,

D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security

Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector

(now Law Officer), Law Officer Grade II, Medical Assistant, Librarian

and Fire Officer, etc. At the time of the issuance of order dated

03.10.1990 revising the scale of pay of Head Clerks, Head Clerk-

cum-Divisional Accountants, Internal Auditors etc., there were various

posts included in Group XII. For all these posts, source and mode of

14 recruitment, qualifications and nature of work are entirely different. If

the contention of the Sub Fire Officers for parity of pay scale with pay

scale of Head Clerks, Head Clerk-cum-Divisional Accountants and

Internal Auditors is accepted, such parity of scale of pay may have to

be extended to all other posts in Group XII which would involve huge

financial repercussion on the finance of the Board which is a service-

oriented institution. The High Court, in our view, erred in not keeping

in view the financial consequences of the direction to give parity of

pay scale to the Sub Fire Officers. As held in Union of India and

Another v. Manik Lal Banerjee (2006) 9 SCC 643, “it is now a well

settled principle of law that financial implication is a relevant factor for

accepting the revision of pay.”

24. Before the learned Single Judge, the respondents relied upon

the letter written by the Superintendent Engineer, GNDTP, Bhatinda

to the Chief Engineer, GNDTP, Bhatinda dated 25.03.1991 to

consider the request of Sub Fire Officers for parity of pay scale with

pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants

and Internal Auditors. As rightly contended by the appellant-Board,

the letter was written only on the ground that there would not be

much financial burden. But the said letter does not indicate any parity

of nature of work, responsibilities, functional need, etc. The said letter

15 of the Superintendent Engineer, GNDTP, Bhatinda also did not take

note of other various categories of posts included in Group XII.

Referring to the said letter dated 25.03.1991 of the Superintendent

Engineer, GNDTP, Bhatinda, the learned Single Judge observed that

the plea of the respondents for parity of pay scale was supported by

the Superintendent Engineer. The learned Single Judge did not keep

in view the well factors like source, mode of recruitment, nature of

work, etc. for the post of Sub Fire Officers and the Head Clerks, Head

Clerk-cum-Divisional Accountants and Internal Auditors.

25. In the writ petition, the respondents have taken the plea that

they are entitled to the scale of pay on par with the employees of the

Punjab Government in parity of the wages. Nature of work performed

by those in the service of Punjab Government are different from those

in service of the Board, the learned Single Judge rightly refused to

accept the plea of the respondents claiming parity with the employees

of the State Government.

26. The learned Single Judge, however, proceeded under the

erroneous footing that merely because Sub Fire Officers were

categorised in Group XII, they were entitled parity of scale of pay with

pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants

and Internal Auditors. Inclusion of posts of Sub Fire Officers in Group

16 XII may not be a determinative factor to hold that the Sub Fire

Officers are equal with Head Clerks, Head Clerk-cum-Divisional

Accountants, and Internal Auditors. Mere difference in pay scale does

not always amount to discrimination; it depends upon the mode of

selection/recruitment, nature, quality of work and duties and that the

status of both the posts are identical. Observing that it is not always

impermissible to provide two different pay scales in the same cadre,

this Court, in SAIL, held as under:-

“29. It is a settled legal proposition that it is not always impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Others (1989) 2 SCC

235.) “Non-uniformities would not in all events violate Article 14.” Thus, a mere difference does not always amount to discrimination.

(Vide Madhu Kishwar and Others v. State of Bihar and Others (1996) 5 SCC 125, Associate Banks Officers’ Assn. v. SBI and Others (1998) 1 SCC 428 and Official Liquidator v. Dayanand and Others (2008) 10 SCC 1)”.

27. Respondents have not produced any material to show that

there is any similarity/identity between the posts of Sub Fire Officers

and the Head Clerks, Head Clerk-cum-Divisional Accountants and

Internal Auditors in terms of the nature of duties, responsibilities,

qualifications and mode of recruitment etc. to apply the principle of

parity of pay scale. The learned Single Judge did not keep in view

that the nature of duties and responsibilities performed by the Sub

Fire Officers are different and parity cannot be claimed merely on the

17 ground that they are categorised in one group. The judgment of the

learned Single Judge and the impugned judgment of the Division

Bench cannot be sustained and are liable to be set aside.

28. In the result, the impugned judgment dated 28.09.2010 passed

by the High Court of Punjab and Haryana at Chandigarh in LPA

No.713 of 2010 is set aside and this appeal is allowed. Pursuant to

the interim order of the Supreme Court, if any amount over and above

the salary payable has been paid, the same may not be recovered

from the respondents and other Sub Fire Officers.

…..………………….J. [R. BANUMATHI]

…..………………………J. [INDIRA BANERJEE]

New Delhi;

January 08, 2019

18