Punjab State Co-Op Milk … vs Balbir Kumar Walia on 9 July, 2021


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Supreme Court of India

Punjab State Co-Op Milk … vs Balbir Kumar Walia on 9 July, 2021

Author: Hemant Gupta

Bench: Sanjay Kishan Kaul, Hemant Gupta

                                                                   REPORTABLE

                                   IN THE SUPREME COURT OF INDIA

                                    CIVIL APPELLATE JURISDICTION


                                   CIVIL APPEAL NO. 7427 OF 2011

                      PUNJAB STATE CO-OPERATIVE MILK
                      PRODUCERS FEDERATION LTD. & ANR.               .....APPELLANT(S)

                                                     VERSUS


                      BALBIR KUMAR WALIA & ORS.                    .....RESPONDENT(S)


                                                  WITH

                                   CIVIL APPEAL NO. 7429 OF 2011

                                   CIVIL APPEAL NO. 7430 OF 2011

                                   CIVIL APPEAL NO. 7431 OF 2011

                                   CIVIL APPEAL NO. 7432 OF 2011

                                   CIVIL APPEAL NO. 7433 OF 2011

                                   CIVIL APPEAL NO. 7434 OF 2011

                                                  AND

                                   CIVIL APPEAL NO. 7435 OF 2011

                                         JUDGMENT

HEMANT GUPTA, J.

Signature Not Verified

Digitally signed by
Charanjeet kaur
Date: 2021.07.09
16:37:57 IST
Reason: CIVIL APPEAL NO. 7427 OF 2011, CIVIL APPEAL NO. 7429 OF
2011, CIVIL APPEAL NO. 7430 OF 2011, CIVIL APPEAL NO.
7431 OF 2011, CIVIL APPEAL NO. 7433 OF 2011 AND CIVIL

1
APPEAL NO. 7435 OF 2011

1. The present appeals are directed against an order passed by

the Division Bench of the High Court of Punjab & Haryana at

Chandigarh on 19.3.2009 whereby the writ petitions filed by

the respondents1 herein were allowed holding that the Punjab

State Co-operative Milk Producers Federation Ltd. 2 is a State

within the meaning of Article 12 of the Constitution of India

and that the employees are therefore entitled to pay scale

equivalent to their counterparts in the State of Punjab from

1.1.1986, though the revised pay scale was allowed by the

Federation w.e.f. 1.1.1994.

2. The milk producers in the State launched the setting up of

Cooperative Societies at village level which are known as

Primary Milk Producers Cooperative Societies. Such Primary

Milk Producers Cooperative Societies are in turn members of

The District Cooperative Milk Producers Union. These District

Level Unions are ultimately the members of the Federation.

The employees have claimed pay scale as revised by the

Punjab Government Anomaly Committee w.e.f. 1.1.1986.

3. Before the High Court, an objection was raised by the

Federation that since it is not a State within the meaning of

Article 12 of the Constitution, therefore, the writ petitions were

1 Hereinafter referred to as the ‘employees’
2 For short, the ‘Federation’

2
not maintainable. However, before this Court, Mr. Patwalia,

learned senior counsel appearing for the Federation has

submitted that the question whether the Federation is a State

or not is not being raised in the present appeals. The main

grievance of the Federation is regarding grant of revised pay

scale w.e.f. 1.1.1986 though the Federation was suffering with

acute financial stringency in those days and had therefore

granted revised pay scales from 1.1.1994.

4. It is pointed out that The Registrar (Cooperative Societies)

accorded approval for implementation of the report of the

Third Pay Commission on 2.6.1989. The Federation granted

revised pay scale and allowances w.e.f. 1.1.1986 as per the

report of the Pay Commission. Thereafter, on 15.2.1990, the

State Government revised pay scale of Veterinary Officers of

the Animal Husbandry Department, Punjab Government from

Rs.850-1700 to Rs.2200-4000 and that after eight years of

service, the pay scale of Veterinary Officers would be Rs.3000-

4500 and after eighteen years of service, it would be Rs.3700-

5300 with effect from 1.1.1986 on the basis of report of an

Anomaly Committee constituted to consider the grievances of

the employees of the State. It is the said pay scale which was

claimed by the filing of writ petitions before the High Court.

3

5. It was argued that the Federation was facing acute financial

crisis inasmuch as the State had granted a loan of Rs.8 (sic

12) crores on 9.5.1990 which the Federation could not repay

and, therefore, the said amount was converted into the share

capital of the State Government with the Federation. In

addition thereto, keeping in view the financial stringency, the

National Dairy Development Board gave a loan of Rs. 4 crores

on 2.5.1990 to the Federation. After the loan was granted by

the National Dairy Development Board, there was a change in

the management which led to restructuring of the Federation.

6. The service conditions of the employees of the Federation are

governed by the Punjab State Co-operative Milk Producers

Federation Services (Common Cadre) Rules, 1980 3. The

Common Cadre Rules were resolved to be amended on

10.8.1990 by the Board of Directors of the Federation. The

same were approved by the Registrar (Co-operative Societies)

on 30.10.1990. It is thereafter that the Federation issued a

notice under Section 9-A of the Industrial Disputes Act, 1947

on 12.11.1990 (Annexure P-12) to all the employees on the

ground of financial stringency showing its intention to effect

the changes specified in the annexure annexed with the said

notice.

3 Hereinafter referred to as the ‘Common Cadre Rules’

4

7. The employees of the Federation raised protest; therefore, a

committee was constituted on 6.12.1994 to examine the

following issues:

“(i) Whether the upward revision should be adopted for
the employees of Milkfed and Milk Unions?

(ii) Whether the revision is to be given with effect from
1.1.1986 or any subsequent date by giving the benefit
of notional fixation?

(iii) Whether the upward should confine only to the
categories covered in the report of Government
Anomaly Committee or categories enjoying identical
scales (unimproved) need to be covered (a)
repercussion if revision is confined to the categories
covered in the Government report (b) impact, if any, of
pending writ petitions, resolutions of BOD of M.U.,
Ludhiana and BOD of Milkfed?

(iv) Whether there is any necessity of changing the
qualification/improving designations of certain
categories being placed in higher scales?

(v) Any other point/issue identical to or connected with
the above?”

8. The Committee, inter alia, made the following

recommendations:

“4. The Committee finds that in case the revision of
pay scales is taken up w.e.f. 1.1.1986, the amount of
arrears upto 31.12.1993 works out to Rs.1.5 crore
approx., i.e. about 60 lacs in case of those categories
for which the scales have been improved and about
Rs.90 lac in case of identical categories. Taking into
consideration the financial health of the Milkfed and
more particularly majority of Milk Unions, Committee
strongly feels that payment of arrears will further

5
shatter the financial health of the Milkfed and Milk
Unions and it will not be possible to pay such a huge
amount in the shape of arrears. Committee feels that
the employees concerned also understand this position
and will most probably be agreeable to the grant of
improved pay scales w.e.f. any subsequent date. The
2nd alternative of granting benefit from 1.1.1994 with
notional fixation of BP w.e.f. 1.1.1986 has also been
examined. In this case, more than 750 employees will
be financially benefited and the financial burden will be
Rs.2.0 lac pm. This is also considered to be a huge
liability, especially when the recommendations of the
IVth Pay Commission are expected and the liability on
its implementation is also likely to be heavy. Further,
the Committee has been told that the liability of the
arrears n account of Prop. set up from 1.1.1986 to
31.8.1992 are still outstanding. The Committee after
considering the above as well as various other aspects,
recommends that the improved pay scales may be
implemented w.e.f. 1.1.1994 without giving the benefit
of even notional pay fixation w.e.f. 1.1.1986. Adoption
of the Punjab Government pattern of Pay Scales has
been felt necessary with a view to make parity in the
scales for future revisions etc. This would save the
organisation from a huge liability of the payment of
arrears and will also give scope to the employee for
placement in better pay scale and getting benefit
which might accrue as a result next revision of pay
scale likely to be made w.e.f. 1.1.1994 on Punjab
Government pattern.”

9. The report of the Committee was considered and the grant of

revised pay scale w.e.f. 1.1.1994 was approved by the Board

of Directors of the Federation. The minutes of the meeting of

the Board of Directors of Federation held on 30.8.1996 read as

under:

“After discussion, it is unanimously resolved that in
view of the recommendations of the Departmental

6
Committee, constituted by the Milkfed on 6.12.1994,
contained in the report enclosed at Annexure-3, ap-
proval is granted to the implementation of the revised
pay scales and Master Pay Scale to the concerned em-
ployees of the Milkfed and the Milk Unions in accor-
dance with the report of the Anomaly Committee con-
stituted under the Third Pay Commission by the Punjab
Government, with effect from 1.1.1994. Its approval
may also be obtained from the Registrar, Cooperative
Societies, Punjab.”

10. The decision of the Board was approved by the Registrar (Co-

operative Societies) on 29.4.1997. Thus, subsequently, re-

vised scales with effect from 1.1.1994 were granted to the

employees.

11. Mr. Patwalia referred to the communication of the Punjab Gov-

ernment dated 1.3.1990 that grant of allowances or conces-

sions should not automatically be made applicable to the em-

ployees of Public Sector Undertakings/Cooperative Institutions,

without examining the liabilities involved, the available re-

sources of the Undertakings and the extent of concessions al-

ready being availed by their employees. The State Govern-

ment communicated as under:

“It has accordingly been decided that instructions, re-
garding grant of any allowance/perks/concessions etc.
by whatever name called, issued by State Govern-
ment from time to time for its employees should not
automatically be made applicable to the employees of
Public Sector Undertakings/Cooperative Institutions.
Before making such instructions applicable to your
employees/officers, these should thoroughly be exam-

7

ined by B.O.D. with reference to the liabilities in-

volved, capacity of the Undertakings to bear the addi-
tional financial burden, availability of the resources
and the extent/nature of the similar allowances/con-
cessions already being availed of and the views of De-
partment of Finance (B.P.E.) should also invariably be
obtained through the Administrative Department.”

12. The State Government reiterated on 9.7.1993 that whenever

instructions for revision of allowances/pay scale are issued by

the Punjab Government for its employees, they are adopted

by Public Sector Undertakings and are applied to its employ-

ees without examining the liability involved and the capacity

to pay, which results in loss and Public Sector Undertakings

add the same to their costs. It was suggested that these prac-

tices may be discontinued as the State Government would not

be supporting the PSUs financially in such cases . It was com-

municated as under:

“It has been noticed that whenever any instructions
regarding revision of allowances/pay are issued by
the Punjab Government for its employees these are
adopted by Public Sector Undertakings and applicable
to its employees without examining the liability in-
volved and the Public Sector Undertakings capacity to
pay with the result that the loss incurring Public Sec-
tor Undertakings keep adding to their costs. This
practice may be discontinued. The establishment
cost of per unit of product or service in Public Sector
Undertakings has increased very much. Therefore, no
further additives should be encouraged and Govern-
ments revision is not justifiable pretext to consider
similar increase in the Public Sector Undertakings
should see their financial condition, rising cost in rela-

tion to productivity and the fact that Governments is

8
not going to support the Public Sector Undertakings fi-

nancially.”

13. The High Court allowed the writ petitions filed by the employ-

ees holding that the financial stringency was no longer an

excuse to not revise the pay scales and thus held that the

date of implementation to grant revised pay scales as

1.1.1994 was absolutely unfair. The Federation is in appeal

herein against such order. This Court had stayed the recovery

pending further orders on 6.11.2009.

14. Mr. Patwalia, learned counsel for the Federation, submitted

that the High Court erred in law in holding that the date of im-

plementation to grant revised pay scales as 1.1.1994 was ab-

solutely unfair and that financial stringency was not an excuse

for refusing to revise the pay scales from 1.1.1986. It was

contended that the judgments4 referred to by the High Court

have no applicability to the facts of the present case. Mr. Pat-

walia also relied upon judgments of this Court reported as

A.K. Bindal & Anr. v. Union of India & Ors. 5 and State of

Punjab & Ors. v. Amar Nath Goyal & Ors.6 wherein the

4 M.M.R. Khan & Ors. v. Union of India & Ors., 1990 (Supp.) SCC 191; Haryana State
Minor Irrigation Tubewells Corporation & Ors. v. G.S. Uppal & Ors
., (2008) 7 SCC 375;
High Court Employees Welfare Assn., Calcutta & Ors. v. State of W.B. & Ors., (2004) 1
SCC 334; Supreme Court Employees Welfare Association v. Union of India & Anr., (1989)
4 SCC 187 and Purshottam Lal & Ors. v. Union of India & Anr., (1973) 1 SCC 651
5 (2003) 5 SCC 163
6 (2005) 6 SCC 754

9
Court had upheld financial stringency as a ground to deny

higher pay scales etc.

15. Mr. Govind Goel, appearing for the respondents in Civil Appeal

No. 7433 of 2011 argued that the writ petition before the High

Court was filed on behalf of one Head Draftsman, two

Draftsman, two Junior Draftsman and two Surveyors. It was

contended that such seven employees of the Federation have

not been provided the benefit of recommendations of the

Committee as was granted to the other employees of the

Federation w.e.f. 1.1.1994. Thus, it was argued that the

decision to not grant the revised pay scale on the basis of the

report of the Committee of the Federation w.e.f. 1.1.1994 was

wholly arbitrary and discriminatory. It was contended that out

of the 1573 employees of the Federation, these seven

employees alone have been discriminated. It was also argued

that the High Court has restricted the arrears consequent to

its directions to grant arrears of the revised pay scale for a

period of 3 years and 2 months from the date preceding the

date of filing of respective writ petitions. While contesting the

ground of financial stringency preferred by the Federation, it

was stated that though there were losses for some years, the

information disclosed under the Right to Information Act on

22.7.2011 shows that the Federation has been in profit since

10
1996-1997. Hence, such ground of financial stringency is not

tenable.

16. Mr. Goel relied upon a Constitution Bench judgment of this

Court reported as Purshottam Lal, referred to by the High

Court as well, to contend that revision of pay scale

recommended by the Pay Commission after acceptance by the

Government could not be denied to a category of employees

as it would be an act of discrimination.

17. Mr. Patwalia controverted the arguments raised by Mr. Goel

and pointed out that the writ petitioners are the employees of

the Federation who have no work of the post to which they

were appointed. Instead of abolishing the post to which the

writ petitioners were appointed, the Committee had

nevertheless dealt with the grant of revised pay scales to

them in the following manner:

      Sr.    Name of     Unrevise    Alread    Pay        Remarks       Recommendation
      No.    the         d Pay       y RPS     scale                    s      of   the
             Categorie   scale       w.r.f.    now                      Committee    for
             s           before      1.1.86    revise                   improvement
                         1.1.86                d by                     from 1.1.94
                                               Govt.
                                              xxx
      15     Head        700-1200    1640-     2200-                    There is only one
             Draftsman               2925      3500                     Head Draftsman,
                                                                        for   whom     the
                                                                        deptt.   has    no
                                                                        work has been
                                                                        put on alternate
                                                                        job in a Milk
                                                                        Union.   There is
                                                                        also no likelihood
                                                                        of new civil works
                                                                        to be undertaken.

                                                                                 11
                                                                     So the pay scale
                                                                     of 1800-3200 is
                                                                     recommended for
                                                                     this post.        No
                                                                     financial burden.
      16    Draftsman   570-1080   1500-   1800-   Jr.               There      are      3
                                   2640    3200    Draftsman         draftsmen.      The
                                                   shall     be      civil works have
                                                   eligible for      almost         been
                                                   promotion         completed       and
                                                   as                there      is     no
                                                   draftsman         likelihood of new
                                                   in the scale      civil works to be
                                                   of Rs.1800-       undertaken. Two
                                                   3200 after        of    them     have
                                                   a minimum         been      put     on
                                                   period of 12      alternate jobs, as
                                                   years.            they are surplus.
                                                                     So the committee
                                                                     feels    that    the
                                                                     existing pay scale
                                                                     of Rs.1500-2640
                                                                     is sufficient for
                                                                     them.        So no
                                                                     improvement        is
                                                                     recommended.
      17.   Tracers     400-600    950-    1200-   To         be     There      are      4
                                   1800    2100    designated        tracers. None of
                                                   as          Jr.   them is deployed
                                                   draftsman         on his job, but
                                                   and               have been put on
                                                   qualificatio      alternate      jobs,
                                                   n    to    be     which are clerical,
                                                   raised      to    to provide this
                                                   matric with       work. There is no
                                                   two years         likelihood of civil
                                                   ITI               work for them in
                                                   certificate       future.      So no
                                                   of                improvement        is
                                                   draftsman.        recommended.
      18    Surveyor    400-600    950-    1200-                     There are two
                                   1800    2100                      Surveyors,      who
                                                                     have been put on
                                                                     alternate jobs. So
                                                                     no improvement
                                                                     is recommended
                                                                     for this category
                                                                     too.



18. It was thus argued that the Committee had taken a conscious

decision not to grant pay scale as revised by the Government.

12
Instead of granting enhanced pay scale at par with what was

approved by the State Government, a higher pay than the

recommendations of the Pay Commission was granted. The

Federation thus exercised this option instead of abolishing the

post. Therefore, the decision of the Committee does not

warrant any interference in exercise of the power of judicial

review.

19. We have heard learned counsel for the parties and find that

the judgment and order of the High Court cannot be

sustained. In our country, there are broadly three sets of

employers such as employers in the organized sector like the

Industrial workers; secondly, Public Sector Undertakings

including Boards and Corporations and all other

establishments, which meet the test of a State within the

meaning of Article 12 of the Constitution; and thirdly, Central

or State Government employees.

20. One of the early judgments of this Court is Crown

Aluminium Works v. Workmen7, wherein the question

examined was as to whether in view of financial conditions,

the wages of workmen can be reduced. This Court held that it

would not be right to hold that there is a rigid and inexorable

convention that the wage structure once fixed by Industrial

Tribunals can never be changed to the prejudice of workmen.

7 AIR 1958 SC 30

13
This Court thus held as under:

“11. … In dealing with a claim for such revision, the
Tribunal may have to consider, as in the present case
whether the employer’s financial difficulties could not
be adequately met by retrenchment in personnel
already effected by the employer and sanctioned by
the Tribunal. The Tribunal may also enquire whether the
financial difficulties facing the employer are likely to be
of a short duration or are going to face the employer
for a fairly long time. It is not necessary, and would
indeed be very difficult, to state exhaustively all
considerations which may be relevant in a given case.
It would, however, be enough to observe that, after
considering all the relevant facts, if the Tribunal is
satisfied that a case for reduction in the wage structure
has been established then it would be open to the
Tribunal to accede to the request of the employer to
make appropriate reduction in the wage structure,
subject to such conditions as to time or otherwise that
the tribunal may deem fit or expedient to impose. …”

21. In respect of Industrial workers, this Court, while dealing with

wage structure in a judgment reported as Standard Vacuum

Refining Co. of India v. Workmen & Anr.8, held that it is

usual to divide wages into three broad categories: the basic

minimum wage which is the bare subsistence wage, above it

is the fair wage, and beyond the fair wage is the living wage.

The said three categories of wages are described as the

poverty level, the subsistence level and the comfort or the

decency level. This Court accepted the Report by the

Commission of Enquiry on “Emoluments and Conditions of

Service of Central Government Employees, 1957-1959”
8 AIR 1961 SC 895

14
wherein the five norms which should guide all wage fixing

authorities including Minimum Wage Committees, Wage

Boards, adjudicators, etc. were stated by the Court inter alia

as under:

“9. It is well known that the problem of wage structure
with which industrial adjudication is concerned in a
modern democratic State involves on the ultimate
analysis to some extent ethical and social
considerations. ……. As the social conscience of the
general community becomes more alive and active, as
the welfare policy of the State takes a more dynamic
form, as the national economy progresses from stage
to stage, and as under the growing strength of the
trade union movement collective bargaining enters the
field, wage structure ceases to be a purely arithmetical
problem. Considerations of the financial position of the
employer and the state of national economy have their
say, and the requirements of a workman living in a
civilised and progressive society also come to be
recognised.

19. … With regard to the minimum wage fixation it was
agreed that the minimum wage was need-based to
ensure the minimum human needs of the industrial
worker irrespective of any other considerations.

(i) In calculating the minimum wage, the standard
working class family should be taken to consist of 3
consumption units for one earner; the earnings of
women, children and adolescents should be
disregarded.

(ii) Minimum food requirement should be calculated on
the basis of a net intake of calories, as recommended
by Dr Aykroyd for an average Indian adult of moderate
activity.

(iii) Clothing requirements should be estimated at a per
capita consumption of 18 yards per annum which
would give for the average workers’ family of four, a

15
total of 72 yards.

(iv) In respect of housing, the rent corresponding to the
minimum area provided for under Government’s
Industrial Housing Scheme should be taken into
consideration in fixing the minimum wage.

(v) Fuel, lighting and other ‘miscellaneous’ items of
expenditure should constitute 20% of the total
minimum wage.”

22. This Court in Hindustan Times Ltd., New Delhi v.

Workmen9 held that numerous complex factors, some of

which are economic and some spring from social philosophy

give rise to conflicting considerations that have to be borne in

mind and that such factors are not static in nature. The

financial position of the employer, state of national economy,

and the requirements of a workman living in a civilized and

progressive society also are to be recognized. This Court held

as under:

“5. The fixation of wage structure is among the most
difficult tasks that industrial adjudication has to tackle.

On the one hand not only the demands of social justice
but also the claims of national economy require that
attempts should be made to secure to workmen a fair
share of the national income which they help to
produce, on the other hand, care has to be taken that
the attempt at a fair distribution does not tend to dry
up the source of the national income itself On the one
hand, better living conditions for workmen that can
only be possible by giving them a “living wage” will
tend to increase the nation’s wealth and income on the
other hand, unreasonable inroads on the profits of the
9 (1963) 1 LLJ 120

16
capitalists might have a tendency to drive capital away
from fruitful employment and even to affect
prejudicially capital formation itself. The rise in prices
that often results from the rise of the workmen’s wages
may in its turn affect other members of the community
and may even affect prejudicially the living conditions
of the workmen themselves. The effect of such a rise in
price on the Country’s international trade cannot also
be always ignored. Thus numerous complex factors,
some of which are economic and some spring from
social philosophy give rise to conflicting considerations
that have to be borne in mind. Nor does the process of
valuation of the numerous factors remain static. ……

6. In trying to keep true to the two points of social
philosophy and economic necessities which vie for
consideration, industrial adjudication has set for itself
certain standards in the matter of wage fixation. At the
bottom of the ladder, there is the minimum basic wage
which the employer of any industrial labour must pay in
order to be allowed to continue an industry. Above this
is the fair wage, which may roughly be said to
approximate to the need based minimum, in the sense
of a wage which is “adequate to cover the normal
needs of the average employee regarded as a human
being in a civilised society.” Above the fair wage is the
“living wage” a wage “which will maintain the workman
in the highest state of industrial efficiency, which will
enable him to provide his family with all the material
things which are needed for their health and physical
well-being, enough to enable him to qualify to
discharge his duties as a citizen.” (Cited with approval
by Mr. Justice Gajendragadkar in Standard Vacuum
Company’s Case (1) from “The living Wage” by Philip
Snowden).”

23. In Workmen v. Reptakos Brett. & Co. Ltd. 10, this Court

held that a worker’s wage has the force of collective

bargaining under the labour laws. Each category of the wage

10 (1992) 1 SCC 290

17
structure has to be tested at the anvil of social justice which is

the live-fibre of our society today. The Court held as under:

“12. The concept of ‘minimum wage’ is no longer the
same as it was in 1936. Even 1957 is way behind. A
worker’s wage is no longer a contract between an
employer and an employee. It has the force of
collective bargaining under the labour laws. Each
category of the wage structure has to be tested at the
anvil of social justice which is the live-fibre of our
society today. Keeping in view the socio-economic
aspect of the wage structure, we are of the view that it
is necessary to add the following additional component
as a guide for fixing the minimum wage in the industry:

“(vi) children’s education, medical requirement
minimum recreation including
festivals/ceremonies and provision for old age
marriages etc. should further constitute 25 per
cent of the total minimum wage.”

13. The wage structure which approximately answers
the above six components is nothing more than a
minimum wage at subsistence level. The employees
are entitled to the minimum wage at all times and
under all circumstances. An employer who cannot pay
the minimum wage has no right to engage labour and
no justification to run the industry”.

24. Now, in respect of the establishments which meet the

parameters of being a State within the meaning of Article 12,

this Court considered the question of financial stringency in

A.K. Bindal. This Court in the said case was examining the

claim of revision of pay of the employees of a public sector

enterprise. The employers placed reliance upon the Office

Memoranda of the Government of India that the Government

18
would not provide any budgetary support for wage increase

and the undertakings themselves would have to generate the

resources to meet the additional expenditure which would be

incurred on account of increase in the wages. It was thus held

by this Court that the non-revision of pay scale would not

amount to violation of fundamental rights guaranteed under

Article 21 as it would be stretching too far and cannot be

countenanced. It was held that even under industrial law,

workmen should get a minimum wage or a fair wage but not

that the wages must be revised and enhanced periodically.

The Court held as under:

“17. …Being employees of the companies, it is the
responsibility of the companies to pay them salary and
if the company is sustaining losses continuously over a
period and does not have the financial capacity to
revise or enhance the pay scale, the petitioners cannot
claim any legal right to ask for a direction to the
Central Government to meet the additional expenditure
which may be incurred on account of revision of pay
scales. It appears that prior to issuance of the office
memorandum dated 12-4-1993 the Government had
been providing the necessary funds for the
management of public sector enterprises which had
been incurring losses. After the change in economic
policy introduced in the early nineties, the Government
took a decision that the public sector undertakings will
have to generate their own resources to meet the
additional expenditure incurred on account of increase
in wages and that the Government will not provide any
funds for the same. Such of the public sector
enterprises (government companies) which had
become sick and had been referred to BIFR, were
obviously running on huge losses and did not have
their own resources to meet the financial liability which

19
would have been incurred by revision of pay scales. By
the office memorandum dated 19-7-1995 the
Government merely reiterated its earlier stand and
issued a caution that till a decision was taken to revive
the undertakings, no revision in pay scale should be
allowed. We, therefore, do not find any infirmity, legal
or constitutional in the two office memorandums which
have been challenged in the writ petitions.

18. …But to hold that mere non-revision of pay scale
would also amount to a violation of the fundamental
right guaranteed under Article 21 would be stretching it
too far and cannot be countenanced. Even under the
industrial law, the view is that the workmen should get
a minimum wage or a fair wage but not that their
wages must be revised and enhanced periodically. It is
true that on account of inflation there has been a
general price rise but by that fact alone it is not
possible to draw an inference that the salary currently
being paid to them is wholly inadequate to lead a life
with human dignity. What should be the salary
structure to lead a “life with human dignity” is a
difficult exercise and cannot be measured in absolute
terms….”

25. This Court also considered two earlier judgments11 that the

financial capacity of the employer cannot be held to be a

germane consideration for determination of the wage

structure of the employees, therefore, it must be confined to

the facts of the aforesaid case. It was held that economic

viability or the financial capacity of the employer is an

important factor which cannot be ignored while fixing the

wage structure, otherwise the unit itself may not be able to

11 South Malabar Gramin Bank v. Coordination Committee of South Malabar Gramin Bank
Employees
’ Union., (2001) 4 SCC 101 and Associate Bank Officers’ Association v. State
Bank of India & Ors
., (1998) 1 SCC 428

20
function and may have to close down which will inevitably

have disastrous consequences for the employees themselves.

26. In South Malabar Gramin Bank , one of the contentions

raised was whether financial viability could be the sole

criterion in deciding the wage structure of the Regional Rural

Bank (RRB) employees. The Tribunal constituted to consider

the wage structure inter alia held that The Regional Rural

Banks Act places special emphasis on the development of

rural economy by providing credit and other facilities to

productive activities in the rural areas, particularly to small

and marginal farmers, agricultural labourers, artisans and

small entrepreneurs. The objects and reasons of the Act

provide a highway for the social welfare and common good of

the rural poor living in the priority sector. The RRBs have

brought about socio-economic revolution in the hitherto

unbanked underdeveloped priority sector by ameliorating the

poverty conditions of the underprivileged, SCs/STs and other

weaker sections of the society. That was the paramount

objective of the Act. The Court held that the RRBs are in

fulfilment of the hopes and aspirations aroused in the

Preamble and the directive principles of the Constitution, and

the performance of such institutions in furtherance of those

principles shall not be judged from the curved angle of

21
viability or from the point of view of a private money lender or

businessman or from mere profit and loss statements. This

Court held as under:

“12. …This conclusion of the Tribunal has become
final, the award in question not having been assailed
and on the other hand having been implemented. In
the aforesaid premises, it is a futile attempt on the part
of the employer as well as the Union of India to
reagitate the dispute, which has already been resolved
and has been given effect to. In our considered opinion,
therefore, the aforesaid contention on behalf of the
appellant cannot be sustained and it would no longer
be open, either for the Bank or the Union of India to
raise a contention that in determining the wage
structure of the employees of the RRBs, the financial
condition would be a relevant factor.”

27. In a judgment reported as Officers & Supervisors of

I.D.P.L. v. Chairman & M.D., I.D.P.L. & Ors.12, this Court

held that the employees cannot legitimately claim that their

pay-scales should necessarily be revised and enhanced when

the organization in which they are working are making

continuous losses and are deeply in the red. It was held as

under:

“11. In our view, the economic capability of the
employer also plays a crucial part in it, as also its
capacity to expand business or earn more profits. The
contention of Mr. Sanghi, if accepted, that granting
higher remuneration and emoluments and revision of
pay to workers in other governmental undertakings
and, therefore, the petitioners are also entitled for the
grant of pay revision may, in our opinion, only lead to
undesirable results. Enough material was placed on
12 (2003) 6 SCC 490

22
record before us by the respondents which clearly show
that the first respondent had been suffering heave
losses for the last many years. In such a situation the
petitioners, in our opinion, cannot legitimately claim
that their pay-scales should necessarily be revised and
enhanced even though the organisation in which they
are working are making continuous losses and are
deeply in the red. As could be seen from the counter
affidavit, the first respondent company which is
engaged in the manufacture of medicines became sick
industrial company for various reasons and was
declared as such by the BIFR and the revival package
which was formulated and later approved by the BIFR
for implementation could not also be given effect to
and that the modifications recommended by the
Government of India to the BIFR in the existing revival
package was ordered to be examined by an operating
agency and, in fact, IDBI was appointed as an operating
agency under Section 17(3) of SICA. It is also not in
dispute that the production activities had to be stopped
in the major two units of the company at Rishikesh and
Hyderabad w.e.f. October, 1996 and the losses and
liabilities are increasing every month and that the
payment of three instalments of interim relief could not
also be made due to the threat of industrial unrest and
the wage revision in respect of other employees is also
due w.e.f. 1992 which has also not been sanctioned by
the Government of India.”

28. This Court in a judgment reported as S.C. Chandra & Ors. v.

State of Jharkhand & Ors.13 was examining the question of

equal pay for equal work where the claim of the appellants

was to release and pay Dearness Allowance. Hon’ble Mr.

Justice Markandey Katju in a separate but concurring judgment

held that the “Fixation of pay scale is a delicate mechanism

which requires various considerations including financial

13 (2007) 8 SCC 279

23
capacity, responsibility, educational qualification, mode of

appointment, etc. ….”

29. In Mineral Exploration Corporation Ltd. v. Arvind Kumar

Dixit & Anr.14, this Court was dealing with an appeal against

an order of the High Court, which did not interfere with the

award of Industrial Tribunal who had extended the actual

financial benefits to the respondents by holding that they

cannot be denied benefit of ‘Wage Revision’ by notional

fixation and re-computation of their retiral dues (severance

package). This Court referred to A.K.Bindal and Officers &

Supervisors of I.D.P.L. to accept the argument of the

appellant that if the wage revision office order is interpreted to

include all the employees who were superannuated/

voluntarily retired between 1.4.1997 to 1.4.2003, it would

frustrate the measures taken, including the Voluntary

Retirement Scheme, to improve the condition of Public Sector

Undertaking. The Court thus upheld the cutoff date in view of

the financial constraints faced by the appellant.

30. In the third category of cases, in respect of Central or State

Government, the factor of financial constraints has been found

to be relevant when the liberalized benefits were granted from

a particular date. In Amar Nath Goyal, the question

examined was whether limiting of benefits only to the
14 (2015) 2 SCC 535

24
employees who retired or died on or after 1.4.1995 after

calculating the financial implications was irrational or

arbitrary, the Court held as under:

“26. It is difficult to accede to the argument on behalf
of the employees that a decision of the Central
Government/State Governments to limit the benefits
only to employees, who retire or die on or after 1-4-
1995, after calculating the financial implications
thereon, was either irrational or arbitrary. Financial and
economic implications are very relevant and germane
for any policy decision touching the administration of
the Government, at the Centre or at the State level.”

31. In State of Haryana v. Shri Des Raj Sangar & Anr. 15, the

post of the Panchayati Raj Election Officer was abolished in

view of the extreme financial stringency. This Court held as

under:

“8. …… It was also stated in another affidavit filed on
behalf of the appellant State that the post of
Panchayati Raj Election Officer and the seven posts of
field Deputy Directors were abolished as an economy
measure to meet financial stringency. We see no
cogent ground to question the averments made in the
above affidavits. The averments show that the decision
to abolish the post of Panchayati Raj Election Officer
was taken because of administrative reasons. The
question as to whether greater economy could have
been brought about by adopting some other course is
not for the court to go into for the court cannot sit as a
court of appeal in such matters. It may be that some of
the functions which were being previously performed
by the respondent are now being performed by Deputy
Directors whose posts have not been abolished, this
fact would not show that the decision to abolish the
post held by the respondent was not taken in good

15 (1976) 2 SCC 844

25
faith. After the posts of Deputy Directors had been
created and had been in existence along with the post
of Panchayati Raj Election Officer for a number of
months, the Government, it would appear, decided to
abolish some of the posts to meet the financial
stringency. In taking the decision as to which post to
abolish and which not to abolish, the Government, it
seems, took into account the relative usefulness of
each post and decided to abolish the seven posts of
field Deputy Directors and the one post of Panchayati
Raj Election Officer. This was a matter well within the
administrative discretion of the Government and as the
decision in this respect appears to have been taken in
good faith, the same cannot be quashed by the court.
The fact that the post to be abolished is held by a
person who is confirmed in that post and the post
which is not abolished is held by a person who is not
permanent would not affect the legality of the decision
to abolish the former post as long as the decision to
abolish the post is taken in good faith. We would,
therefore, hold that the High Court was in error in
quashing the order of the Government whereby the
post of Panchayati Raj Election Officer had been
abolished.”

32. The Central or State Government is empowered to levy taxes

to meet out the expenses of the state. It is always a conscious

decision of the government as to how much taxes have to be

levied so as to not cause excessive burden on the citizens. But

the Boards and Corporations have to depend on either their

own resources or seek grant from the Central/ State

Government, as the case may be, for their expenditures.

Therefore, the grant of benefits of higher pay scale to the

Central/State Government employees stand on different

footing than grant of pay scale by an instrumentality of the

26
State.

33. The judgment in Purshottam Lal is a case where reference

was made to the Pay Commission to consider the pay revision

of all Central Government employees paid out of the

Consolidated Fund of India. The recommendation of the Pay

Commission was accepted but the benefit of revised pay scale

was not given to the employees of the Forest Research

Institute and College, Dehradun. An argument was raised that

the report of the Pay Commission did not deal with the case of

the petitioners. The said argument was negated for the

reason that once the Government has accepted the

recommendation of the Pay Commission, which included all

Central Government employees, the benefit of revised pay

scale cannot be denied to the petitioners. This Court has held

as under:

“15. Mr Dhebar contends that it was for the
Government to accept the recommendations of the Pay
Commission and while doing so to determine which
categories of employees should be taken to have been
included in the terms of reference. We are unable to
appreciate this point. Either the Government has made
reference in respect of all government employees or it
has not. But if it has made a reference in respect of all
government employees and it accepts the
recommendations it is bound to implement the
recommendations in respect of all government
employees. If it does not implement the report
regarding some employees only it commits a breach of
Articles 14 and 16 of the Constitution. This is what the
Government has done as far as these petitioners are

27
concerned.”

34. We find that the judgment in Purshottam Lal is altogether on

different facts. The said judgment is in the context where the

report was in respect of all Central Government employees but

the benefit of the report was not granted to the petitioners for

the reason that there was no specific reference in the Pay

Commission report. In the case of the writ petitioners herein

represented by Mr. Govind Goel, the Committee has

considered that there was no work for the writ petitioners. Still

further, instead of abolishing the post, the Federation granted

revised pay scale which was better than the pay scale

recommended by the Pay Commission but less than the pay

scale granted by the State Government in pursuance of the

recommendations of the Anomaly Committee. Thus, it cannot

be said to be a discriminatory or arbitrary decision more so in

exercise of power of judicial review. There exist good reasons

not to grant higher pay scale for the reason that there is no

work of the post to which they were appointed but were given

alternate assignments.

35. The judgment in M.M.R. Khan is in respect of workers in the

canteen in different railway establishments. It was held that

the Government has complete control over the canteens and

28
the workers employed therein are holders of civil posts within

the meaning of Article 311 of the Constitution. The issue was

not of financial stringency on the part of the Union to make the

payment of wages to railway employees.

36. In a judgment reported as The Employees of Tannery and

Footwear Corporation of India Ltd. & Anr. v. Union of

India & Ors.16, the employees were claiming parity in pay and

allowances with that of the Central Government employees.

This Court held that pay scales of the employees in the

unionised cadre falling in four categories in the respondent

corporation should be revised in a way that the same are at

par with the pay scales of such employees employed with the

Cotton Corporation of India.

37. In G.S. Uppal, the Sub-Divisional Officer (SDO), Sub-Divisional

Engineer (SDE) and Assistant Engineer (AE) on deputation

from the Irrigation Department were granted revised pay scale

but the SDO, SDE and AE appointed in the appellant

corporation were denied the same benefit. An argument was

raised that the appellant was running in losses and thus

cannot meet the financial burden on account of revision of pay

scales. The Court while rejecting such argument held as

under:

16 1991 Supp. (2) SCC 565

29
“33. The plea of the appellants that the Corporation is
running under losses and it cannot meet the financial
burden on account of revision of scales of pay has been
rejected by the High Court and, in our view, rightly so.
Whatever may be the factual position, there appears to
be no basis for the action of the appellants in denying
the claim of revision of pay scales to the respondents.
If the Government feels that the Corporation is running
into losses, measures of economy, avoidance of
frequent writing off of dues, reduction of posts or
repatriating deputationists may provide the possible
solution to the problem. Be that as it may, such a
contention may not be available to the appellants in
the light of the principle enunciated by this Court
in M.M.R. Khan v. Union of India [1990 Supp SCC 191 :
1990 SCC (L&S) 632 : (1991) 16 ATC 541] and Indian
Overseas Bank v. Staff Canteen Workers’ Union
[(2000)
4 SCC 245 : 2000 SCC (L&S) 471] . However, so long as
the posts do exist and are manned, there appears to be
no justification for granting the respondents a scale of
pay lower than that sanctioned for those employees
who are brought on deputation. In fact, the sequence of
events discussed above clearly shows that the
employees of the Corporation have been treated on a
par with those in Government at the time of revision of
scales of pay on every occasion.”

38. The judgment in Union of India & Anr. v. S.B. Vohra &

Ors.17 is distinguished from the present matter as the issue

was regarding pay scale of the employees of the High Court on

recommendation of the Chief Justice. It was observed that

financial implications vis-à-vis effect of grant of a particular

scale of pay may not always be a sufficient reason and

differences should be mutually discussed and tried to be

solved. It is, however, again not a case of financial stringency

17 (2004) 2 SCC 150

30
alone but also the power of the Chief Justice to grant revised

pay scales to the employees of the High Court.

39. General Manager, Kisan Sahkari Chini Mills Ltd.,

Sultanpur, U.P. v. Satrughan Nishad & Ors.18 is a judgment

which deals with the scope of Article 12 in respect of

Cooperative Sugar Mills. Mr. Patwalia has not raised any

argument about the Federation being not a State. Therefore,

the said judgment is not relevant to be examined in the

present appeals.

40. In K.T. Veerappa & Ors. v. State of Karnataka & Ors.19,

the Court upheld the principle that fixation of pay and parity in

duties is the function of the executive and financial capacity of

the Government is also a relevant factor to be considered,

though on facts, it was held that the employees of the

University were entitled to revision of pay at par with the

employees of the State. It was held as under:

“13. He next contended that fixation of pay and parity
in duties is the function of the executive and financial
capacity of the Government and the priority given to
different types of posts under the prevailing policies of
the Government are also relevant factors. In support of
this contention, he has placed reliance on State of
Haryana v. Haryana Civil Secretariat Personal Staff
Assn
. [(2002) 6 SCC 72 : 2002 SCC (L&S) 822]
and Union of India v. S.B. Vohra [(2004) 2 SCC 150 :

18 (2003) 8 SCC 639
19 (2006) 9 SCC 406

31
2004 SCC (L&S) 363] . There is no dispute nor can
there be any to the principle as settled in State of
Haryana v. Haryana Civil Secretariat Personal Staff
Assn
. [(2002) 6 SCC 72 : 2002 SCC (L&S) 822] that
fixation of pay and determination of parity in duties is
the function of the executive and the scope of judicial
review of administrative decision in this regard is very
limited. However, it is also equally well settled that the
courts should interfere with administrative decisions
pertaining to pay fixation and pay parity when they find
such a decision to be unreasonable, unjust and
prejudicial to a section of employees and taken in
ignorance of material and relevant factors.”
(Emphasis supplied)

41. In the present case, it is contended that the Federation is a

statutory Co-operative Society which is having its Common

Cadre Rules. Any amendment in the Common Cadre Rules is

to be approved by the Registrar (Co-operative Societies). The

State Government communicated on 1.3.1990 and 9.7.1993

that the pay scale as applicable to the Punjab Government

employees is not to be adopted by the Public Sector

Undertakings without taking into consideration the financial

health of the other statutory Boards and Corporations. The

Federation has thus taken a conscious and concerted decision

to not follow the report of the Anomaly Committee of the State

Government to grant revised pay scale from 1.1.1986 in view

of precarious financial condition. Moreover, financial

assistance had to be availed by the Federation from the State

32
Government as well as from the National Dairy Development

Board.

42. A Committee was constituted to examine the grievance of the

employees for grant of revised pay scale. The Committee also

recommended that pay scale be given w.e.f. 1.1.1994 on

account of financial stringency being faced by the Federation.

The Board of Directors approved the recommendation of the

Committee, which was accepted by the Registrar (Co-

operative Societies). Therefore, the decision of not to grant

revised pay scale from 1.1.1986 was taken keeping in view the

financial condition of the Federation. The question now is

whether such a decision could have been interfered with in a

writ petition in exercise of power of judicial review.

43. The power of judicial review over the administrative decisions

of the State was examined by a judgment of this Court in Tata

Cellular v. Union of India20. Though, that is a case of grant

of contract, but the principles of law are very well applicable to

the exercise of power of judicial review by the High Court in

the administrative decisions of the State within the meaning of

Article 12 of the Constitution. The Court held as under:

“77. The duty of the court is to confine itself to the
question of legality. Its concern should be:

20 (1994) 6 SCC 651

33

1. Whether a decision-making authority exceeded its
powers?

2. Committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal
would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the
fulfilment of that policy is fair. It is only concerned with
the manner in which those decisions have been taken.
The extent of the duty to act fairly will vary from case
to case. Shortly put, the grounds upon which an
administrative action is subject to control by judicial
review can be classified as under:

(i) Illegality : This means the decision-maker must
understand correctly the law that regulates his
decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury
unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not
rule out addition of further grounds in course of time.
As a matter of fact, in R. v. Secretary of State for the
Home Department, ex Brind [(1991) 1 AC 696] , Lord
Diplock refers specifically to one development, namely,
the possible recognition of the principle of
proportionality. In all these cases the test to be adopted
is that the court should, “consider whether something
has gone wrong of a nature and degree which requires
its intervention”.

xx xx xx

94. The principles deducible from the above are:

34
(1) The modern trend points to judicial restraint in
administrative action.

(2) The court does not sit as a court of appeal but
merely reviews the manner in which the decision was
made.

(3) The court does not have the expertise to correct the
administrative decision. If a review of the
administrative decision is permitted it will be
substituting its own decision, without the necessary
expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be
open to judicial scrutiny because the invitation to
tender is in the realm of contract. Normally speaking,
the decision to accept the tender or award the contract
is reached by process of negotiations through several
tiers. More often than not, such decisions are made
qualitatively by experts.

(5) The Government must have freedom of contract. In
other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in
an administrative sphere or quasi-administrative
sphere. However, the decision must not only be tested
by the application of Wednesbury principle of
reasonableness (including its other facts pointed out
above) but must be free from arbitrariness not affected
by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy
administrative burden on the administration and lead
to increased and unbudgeted expenditure.

Based on these principles we will examine the facts of
this case since they commend to us as the correct
principles.”

44. In Balco Employees’ Union (Regd.) v. Union of India &

35
Ors
.21, the Court was examining the policy of disinvestment of

public sector undertakings. It was held that wisdom and

advisability of economic policies of Government are not

amenable to judicial review unless it can be demonstrated

that such policy is contrary to any statutory provision or the

Constitution. It is not for the Court to consider relative merits

of different economic policies and consider whether a wiser or

better one could be evolved. The Court held as under:

“92. In a democracy, it is the prerogative of each
elected Government to follow its own policy. Often a
change in Government may result in the shift in focus
or change in economic policies. Any such change may
result in adversely affecting some vested interests.
Unless any illegality is committed in the execution of
the policy or the same is contrary to law or mala fide, a
decision bringing about change cannot per se be
interfered with by the court.

93. Wisdom and advisability of economic policies are
ordinarily not amenable to judicial review unless it can
be demonstrated that the policy is contrary to any
statutory provision or the Constitution. In other words,
it is not for the courts to consider relative merits of
different economic policies and consider whether a
wiser or better one can be evolved. For testing the
correctness of a policy, the appropriate forum is
Parliament and not the courts. Here the policy was
tested and the motion defeated in the Lok Sabha on 1-
3-2001.

xx xx xx

98. In the case of a policy decision on economic
matters, the courts should be very circumspect in
conducting any enquiry or investigation and must be

21 (2002) 2 SCC 333

36
most reluctant to impugn the judgment of the experts
who may have arrived at a conclusion unless the court
is satisfied that there is illegality in the decision itself.”

45. This Court in a judgment reported as Jagdish Mandal v.

State of Orissa & Ors.22 examined the scope of judicial

review in the matter of award of a contract. The Court held as

under:

“22. Judicial review of administrative action is intended
to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its purpose is
to check whether choice or decision is made “lawfully”
and not to check whether choice or decision is “sound”.

When the power of judicial review is invoked in matters
relating to tenders or award of contracts, certain
special features should be borne in mind. A contract is
a commercial transaction. Evaluating tenders and
awarding contracts are essentially commercial
functions. Principles of equity and natural justice stay
at a distance. If the decision relating to award of
contract is bona fide and is in public interest, courts will
not, in exercise of power of judicial review, interfere
even if a procedural aberration or error in assessment
or prejudice to a tenderer, is made out. The power of
judicial review will not be permitted to be invoked to
protect private interest at the cost of public interest, or
to decide contractual disputes. The tenderer or
contractor with a grievance can always seek damages
in a civil court. Attempts by unsuccessful tenderers
with imaginary grievances, wounded pride and
business rivalry, to make mountains out of molehills of
some technical/procedural violation or some prejudice
to self, and persuade courts to interfere by exercising
power of judicial review, should be resisted. Such
interferences, either interim or final, may hold up
public works for years, or delay relief and succour to
thousands and millions and may increase the project
cost manifold. Therefore, a court before interfering in

22 (2007) 14 SCC 517

37
tender or contractual matters in exercise of power of
judicial review, should pose to itself the following
questions:

(i) Whether the process adopted or decision made by
the authority is mala fide or intended to favour
someone;

OR
Whether the process adopted or decision made is so
arbitrary and irrational that the court can say: “the
decision is such that no responsible authority acting
reasonably and in accordance with relevant law could
have reached”;

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no
interference under Article 226. Cases involving
blacklisting or imposition of penal consequences on a
tenderer/contractor or distribution of State largesse
(allotment of sites/shops, grant of licences, dealerships
and franchises) stand on a different footing as they
may require a higher degree of fairness in action.”

46. In a recent judgment reported as West Bengal Central

School Service Commission & Ors. v. Abdul Halim &

Ors.23, this Court was examining the candidature of a

candidate for appointment in pursuance of advertisement

advertised by West Bengal Central School Service Commission.

One of the essential qualifications was Bengali as a subject

either at the Secondary level or at the Higher Secondary level

or at the graduation or postgraduation level. The candidature

of selected candidate was not interfered with by the Division

23 (2019) 18 SCC 39

38
Bench of the High Court although such candidate was not

possessing Bengali as a language. The Court held as under:

“27. It is well settled that the High Court in exercise of
jurisdiction under Article 226 of the Constitution of
India does not sit in appeal over an administrative
decision. The Court might only examine the decision-
making process to ascertain whether there was such
infirmity in the decision-making process, which vitiates
the decision and calls for intervention under Article 226
of the Constitution of India.

28. In any case, the High Court exercises its
extraordinary jurisdiction under Article 226 of the
Constitution of India to enforce a fundamental right or
some other legal right or the performance of some
legal duty. To pass orders in a writ petition, the High
Court would necessarily have to address to itself the
question of whether there has been breach of any
fundamental or legal right of the petitioner, or whether
there has been lapse in performance by the
respondents of a legal duty.

29. The High Court in exercise of its power to issue
writs, directions or orders to any person or authority to
correct quasi-judicial or even administrative decisions
for enforcement of a fundamental or legal right is
obliged to prevent abuse of power and neglect of duty
by public authorities.

30. In exercise of its power of judicial review, the Court
is to see whether the decision impugned is vitiated by
an apparent error of law. The test to determine whether
a decision is vitiated by error apparent on the face of
the record is whether the error is self-evident on the
face of the record or whether the error requires
examination or argument to establish it. If an error has
to be established by a process of reasoning, on points
where there may reasonably be two opinions, it cannot
be said to be an error on the face of the record, as held
by this Court in Satyanarayan Laxminarayan
Hegde v. Millikarjun Bhavanappa
Tirumale [Satyanarayan Laxminarayan

39
Hegde
v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC
137]. If the provision of a statutory rule is reasonably
capable of two or more constructions and one
construction has been adopted, the decision would not
be open to interference by the writ court. It is only an
obvious misinterpretation of a relevant statutory
provision, or ignorance or disregard thereof, or a
decision founded on reasons which are clearly wrong in
law, which can be corrected by the writ court by
issuance of writ of certiorari.

31. The sweep of power under Article 226 may be wide
enough to quash unreasonable orders. If a decision is
so arbitrary and capricious that no reasonable person
could have ever arrived at it, the same is liable to be
struck down by a writ court. If the decision cannot
rationally be supported by the materials on record, the
same may be regarded as perverse.

32. However, the power of the Court to examine the
reasonableness of an order of the authorities does not
enable the Court to look into the sufficiency of the
grounds in support of a decision to examine the merits
of the decision, sitting as if in appeal over the decision.
The test is not what the Court considers reasonable or
unreasonable but a decision which the Court thinks that
no reasonable person could have taken, which has led
to manifest injustice. The writ court does not interfere,
because a decision is not perfect.

33. In entertaining and allowing the writ petition, the
High Court has lost sight of the limits of its
extraordinary power of judicial review and has in fact
sat in appeal over the decision of Respondent 2.”

47. Later, a three-Judge Bench in a judgment reported as

Municipal Council, Neemuch v. Mahadeo Real Estate &

Ors.24 followed the aforesaid judgment and held as under:

24 (2019) 10 SCC 738

40
“16. It could thus be seen that an interference by the
High Court would be warranted only when the decision
impugned is vitiated by an apparent error of law i.e.
when the error is apparent on the face of the record
and is self-evident. The High Court would be
empowered to exercise the powers when it finds that
the decision impugned is so arbitrary and capricious
that no reasonable person would have ever arrived at.
It has been reiterated that the test is not what the
Court considers reasonable or unreasonable but a
decision which the Court thinks that no reasonable
person could have taken. Not only this but such a
decision must have led to manifest injustice.”

48. In another recent judgment reported as Harshit Agarwal &

Ors. v. Union of India & Ors.25, this Court held that judicial

review of administrative action is permissible on grounds of

illegality, irrationality and procedural impropriety. An

administrative decision is considered as flawed if it is illegal,

and a decision is illegal if it pursues an objective other than

that for which the power to make the decision was conferred.

The discretion exercised by the decision maker is subject to

judicial scrutiny if a purpose other than the specified purpose

is pursued. The Court observed that:

“10. Judicial review of administrative action is
permissible on grounds of illegality, irrationality and
procedural impropriety. An administrative decision is
flawed if it is illegal. A decision is illegal if it pursues an
objective other than that for which the power to make
the decision was conferred [De Smith’s Judicial Review,
(6th Edn., p. 225)] . There is no unfettered discretion in
public law [Food Corpn. of India v. Kamdhenu Cattle
Feed Industries
, (1993) 1 SCC 71] . Discretion conferred
25 (2021) 2 SCC 710

41
on an authority has to be necessarily exercised only for
the purpose provided in a statute. The discretion
exercised by the decision maker is subject to judicial
scrutiny if a purpose other than a specified purpose is
pursued. If the authority pursues unauthorised
purposes, its decision is rendered illegal. If irrelevant
considerations are taken into account for reaching the
decision or relevant considerations have been ignored,
the decision stands vitiated as the decision maker has
misdirected himself in law. It is useful to refer
to R. v. Vestry of St. Pancras [R. v. Vestry of St. Pancras,
(1890) LR 24 QBD 371 (CA)] in which it was held: (QBD
pp. 375-76)

“… If people who have to exercise a public duty by
exercising their discretion take into account matters
which the courts consider not to be proper for the
guidance of their discretion, then in the eye of the law
they have not exercised their discretion.”

49. Thus, we find that the decision that the Federation was in

financial difficulties is based upon relevant material before the

Federation. The process to arrive at such decision can be said

to be flawed only on the permissible grounds of illegality,

irrationality and procedural impropriety. We find that neither

the decision-making process, nor the decision itself suffers

from any such vice.

50. Learned counsel for the writ petitioners have referred to the

information received under the Right to Information Act to

show that the Federation was in profit in the year 1996-1997.

We do not find that such information is relevant to determine

the financial condition for the period from 1.1.1986 to

42
1.1.1994. The Federation has categorically stated that

because of the remedial steps taken by the Federation, there

was turn around only after 1994. Still further, we find that the

profits in the balance sheet are not meant to be appropriated

towards wages of the employees alone. Though the profits

had to be shared by the members of the Co-operative Society,

but the employees of the Federation are not its members. The

income generated by the Federation is not to be expanded

only on payment of salary but is also required for upgradation

of technology, renovation and expansion of plants etc.

Therefore, entire profit is not to be appropriated towards the

wages of the employees alone. The Federation was

established as a step towards white revolution. The objective

of the Federation was not to give employment but to increase

milk production in the State. The employees are facilitators of

the employer to achieve such objective and thus demanding

enhanced wages without considering the objective and

financial condition of the employer would not be ideal. The

employer and the employees have to work together to

achieve the objective of the organisation i.e. white revolution

rather frittering away the gains made by the joint efforts of

the management and employees by giving increased wages to

the employees irrespective of its capacity to bear such

43
expenses.

51. The submission that there will not be financial burden on the

federation in view of the fact that the High Court has ordered

payment of arrears for a period of 3 years and 2 months

before the date of filing of writ petitions is again not tenable.

The High Court has granted revised pay scales with effect

from 01.01.1986 instead of revised pay scales granted to the

employees of the federation with effect from 01.01.1994.

Therefore, restricting it for a period of 3 years and 2 months

will not be helpful in respect of the financial condition of the

Federation as during the relevant time the federation was

suffering from huge losses.

52. In view of the above, we find that the order of the High Court

is unjustified and in excess of the power of judicial review

conferred on the High Court. Consequently, the appeals are

allowed. The orders passed by the High Court are hereby set

aside and the writ petitions are dismissed.

CIVIL APPEAL NO. 7432 OF 2011

53. The present appeal is also directed against an order passed by

the Division Bench of the High Court of Punjab & Haryana at

Chandigarh on 19.3.2009 wherein it was held that the

employees are entitled to pay scale equivalent to their

44
counterparts in the State of Punjab from 1.1.1986, though the

revised pay scale was allowed by the Federation w.e.f.

1.1.1994. The argument raised is that the contention of the

employees claiming equal pay for equal work has not been

examined by the High Court.

54. The employees have not filed any appeal against the

impugned judgment of the High Court. We find that the

employees cannot raise any grievance in an appeal preferred

by the Federation to claim equal pay for equal work. The

employees are not aggrieved against the judgment of the High

Court. Therefore, the employees cannot raise an argument

which was not raised before the High Court.

55. But still, we have examined the argument raised. It was

argued that the claim of the employees is not of revised pay

scale from 1.1.1986 but that the categorization of Milk

Procurement Assistants as Grade-I & II is unconstitutional and

they would be entitled to the same pay as is being paid to Milk

Procurement Assistants Grade-I on the principle of equal pay

for equal work.

56. The said contention of the employees is controverted by the

Federation, inter alia, on the ground that the Milk Procurement

Assistants are not the employees of the Apex Society i.e.

Punjab State Co-operative Milk Producers Federation but they

45
are employees of the District Co-operative Milk Producers

Union which is a separate entity. The staffing pattern for

District Co-operative Milk Producers Union, as approved by the

Registrar (Co-operative Societies), shows that different

educational qualifications and experience is prescribed for

appointment to Milk Procurement Assistants Grade-I & II. It

has also been pointed out that there is qualitative difference in

the responsibilities of the two sets of employees. Milk

Procurement Assistants Grade-II are allotted 10 to 12 villages

at the village-level Milk Producers Co-operative Society for

supervising their work with regard to milk collection, testing,

record keeping, payment to producers of milk, transportation

of milk and to attend the other problems of the societies

whereas the duty of the Milk Procurement Assistants Grade-I is

to supervise the work of Milk Procurement Assistant Grade-II.

One Milk Procurement Assistant Grade I officer supervises the

work of six to seven Milk Procurement Assistants Grade II.

57. As per the staffing pattern, the educational qualifications for

Milk Procurement Assistants Grade-I are Bachelor’s Degree

with minimum three years’ experience of Organisation of Milk

Producers Co-operative Societies affiliated with Milk Producers

Co-operative Unit whereas for Milk Procurement Assistant

Grade II, the qualification is Graduation preferable in

46
Agriculture with one year experience of working as Secretary

in a Co-operative Milk Supply Society. The pay scale

prescribed for the Milk Procurement Assistants Grade-I is

Rs.700-1200 whereas the pay scale prescribed for the Milk

Procurement Assistants Grade-II is Rs.480-880. It is sought to

be contended that, in fact, Milk Procurement Assistants Grade-

I is a promotional avenue for Milk Procurement Assistants

Grade-II.

58. As stated, the educational qualifications and the

responsibilities of the two posts are quite different. Therefore,

the principle of equal pay for equal work would not be

applicable to them inasmuch as Grade I is a higher post

having higher duties and responsibilities than Grade II.

59. We do not find any merit in the argument claiming equal pay

for the alleged equal work. Consequently, the appeal is

allowed. The orders passed by the High Court are hereby set

aside.

CIVIL APPEAL NO. 7434 OF 2011

60. The present appeal is also directed against an order passed by

the Division Bench of the High Court of Punjab & Haryana at

Chandigarh on 19.3.2009 wherein it was held that the

employees are entitled to pay scale equivalent to their

counterparts in the State of Punjab from 1.1.1986, though

47
revised pay scale was allowed by the Federation w.e.f.

1.1.1994. It was contended that the argument of the

employees claiming equal pay for equal work was not

examined by the High Court.

61. The respondent Nos. 1 to 4 are Milk Procurement Assistants

Grade-I in the pay scale of Rs.700-1200 whereas respondent

No. 5 is Animal Husbandry Assistant in the same pay scale of

Rs.700-1200 w.e.f. 1.8.1980. Such employees are claiming

parity in the matter of pay with the Area Officers including

Deputy Manager (Procurement) and Dairy Extension Officer in

the pay scale of Rs.850-1700. The employees have pleaded

that w.e.f. 2.2.1987, the designation of Milk Procurement

Assistants Grade-I has been changed to Milk Procurement

Supervisor and now the workload has increased inasmuch as

fifty societies are to be supervised as against eight societies

which were supervised, without any increase in the pay scale.

It was argued that the duties and functions of the employees

and the other Area Officers including Deputy Manager

(Procurement) and Dairy Extension Officer are the same as

such posts are interchangeable.

62. In the written statement filed before the High Court, the stand

of the Federation was that the employees have since long

been permanently transferred to the Milk Union, Ludhiana. It

48
was pointed out that the employees and the Deputy Manager

(Procurement)/Dairy Extension Officer do not constitute one

class as the posts are not similar on the points of qualifications

and duties to be performed by the incumbents. The

classification on the basis of qualifications, educational or by

experience, for the fixation of pay is permissible under the

Constitution. The qualifications of Milk Procurement Assistant

Grade-I or Animal Husbandry Assistant is

Graduation/Matriculation with live-stock Diploma course

whereas the essential qualifications for the post of Dairy

Extension Officer and for the post of Deputy Manager

(Procurement) is B.Sc. Dairy Husbandry/Dairy Technology with

two to three years’ experience.

63. We have heard learned counsel for the parties. Firstly, the

order passed by the High Court has not been challenged in

appeal by the employees. Secondly, the classification of

different pay scales is permissible based upon educational

qualifications, experience and nature of duties. In view of the

said facts, we do not find that the employees are entitled to

the pay scale as claimed in the writ petition.

64. We do not find any merit in the argument claiming equal pay

for the alleged equal work. Consequently, the appeal is

49
allowed. The orders passed by the High Court are hereby set

aside.

………………………………………J.

(SANJAY KISHAN KAUL)

………………………………………J.

(HEMANT GUPTA)
NEW DELHI;

JULY 9, 2021.

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