CHIEF SECRETARY TO GOVERNMENT OF ANDHRA PRADESH & ANR. v. V. J. CORNELIUS ETC

Citation: [1981] 2 S.C.R. 930

Court: Supreme Court of India

Bench: A.P. SEN, E.S. VENKATARAMIAH

Case summary

II right this anomalous position, by the issue of an executive order. That being so, the Division Bench dismissed the appeal observing that the appropriate remedy was to file a review petition.

Judgment text

CIIlEF SECRETARY TO GOVERNMENT OF ANDHRA PRADESH & ANR. v. V. J. CORNELIUS ETC. February 18, 1981 [A. P. SEN AND E. S. VENKATARAMIAH, JJ. ] Andhra Pradesh Revised Scales of Pay Rules 1969, Rule 3(2) & Fundan1ental Rules, Rule 22(a) (ii)-Fixation of pay-Provision that juriior e1nployee in selection grade of lower post not to draw more pa! ' than his senior holding y-a higher post-Validity of. ( To implement the recomn1endations of a one·man Pay Comn1ission, the State Government issued the Andhra Pradesh Revised Scales of Pay Rules, 1969 iiroviding for the revision of pay and creation of selection grade posts. The selection grade scale was fixed by adding three increments to the maximU. m of the revised scale of pay. While implementing the pay scales, the Government realised that a senior holding a perma.

nent post in one category but holding a post in the next higher grade on promotion would draw less pay in the higher post than a junior in the lower category who was given the selection grade. To avoid the anomalous situation thus created the Government by an executive order directed that the pay of an employee placed in selection grade shall be so fixed as not to exceed the pay of his senior working in the higher post on promotion. This executive instruction was struck down by the High Court as being "iolative of Articles 14 and 16 and also on the ground that the executiveinstruction could not prevail over Fundamental Rule 22 (a) (ii). The Government thereupon introduced Rule 5(2) in the Rules with retrospective effect from the date of the original order. In D. Krishnamurthy & Ors v. State of Andhra Pradesh & Anr. this rule was struck down by the High Court as being violative of Articles 14 and 16. No appeal was, however, :.

___ preferred from the judgment of the High Court striking down the rule. Instead of following a uniform policy in reviSing the pay of all employees in compliance with the direction of the High Court, the Government re-fixed the pay of some of the employees holding selection grade posts but declined to do so in the case of others on the· ground that the re-fixation would be done only in the case of employees who had secured such directions. In the appeals by tho Government to this Court it was contended that it • was wrong to suggest that since no appeal had been preferred against the judgment of the High Court in D. Krishnamurthy's case all the judgments t:X the High Court involving a similar question had become final ~ D. Krishnnmurthy's case related to an altogether different category of em. · ployees of the State Government. Dismissing the appeals, HEID : I.

When the Higb Court issues a writ, direction or order under Art 226 of the Constitution, it is not open to the State Government to imple· ment the decision with regard to some and deny relief to others, although they belong to the same class of persons, and are equally governed by the principle& laid down. The State Government is expected to adopt a uniform policy in regard to all its employees. [936 C-DJ • 2, Replacement of an executive instruction by the State Government by rule framed under Art. 309 of the Constitution, for the fixation of pay of a per~ son promoted to the Selection Grade at a stage lower than the minimum of the scales of pay of such Selection Grade so as not to exceed the pay of his seniors working in the higher posts on promotion, does not cure the constitutional vico inherent in the Government action as the provision is violative of Arts. 14 and 16 of the Constitution. [935 G-HJ 3. The judgment of the High Court, by which sub-r. (2) of r.

5 of the Andhra Pradesh Revised Scales of Pa·y Rules, 1969 having been struck down as offending A1ts. 14 and 16 of the Constitution and as being not in conformity with FR 22(a) (ii) not having been appealed from, had attained a finality and the re-fixation of pay, if any, had to be done as if sub-r. (2) of r. 5 never existed. [937 BJ 4. It is not open to the Government to question the correctness of the judgment of the Jfigh Cou11 when it had attained finality, particularly when in compliance \Vith the directions, it had re-fued the pay of some of the employees in the Selection Grade posts, on the pretext that the right of appeal was not Jost in the case of others in respect of whom no such direction has been issued. At any rate, the point not having been taken before the High Court, could not be allowed to ·be raised for the first time under Art. 136 of the Constitutien. [936 HJ CML APPELLATE JURISDICTION: Civil Appeal No. 383 of 1976.

Appeal by special leave from the Judgment and Order dated 12-6-1975 of the Andhra Pradesh High Court in Writ Appeal No. 313 of 1975. Connected with Civil Appeal Nos. 1434-85/77, 2669/79 & 2670/79, 1763-1781/ 77, 2511, 2625, 2679, 2776/77, 332, 333, 909 & 930/78 and S. L. Ps. 1768-70/76, 1769/77, 4246, 4379/77 and 251/79. P. Rama Reddy, G. S. Narayana and G. N. Rao for the Appellant in all the matters. • B. Parthasarthy for the Respondent in CAs 383/76, 1443/77, 1444/77 (for R. 5), CA 1456/77 (for RR. 2 & 4), CA 1461/77 for ( R. 17), CA 1463/77 for RR-1 & 2 and R. 10 in CA 1464/77 for R. 1 in CA 1466/77 for R. 1, 1468/77 for both the Respondents, 1470/ 77 for R. 1, CA 1476177 for R. 2, 1481 for RR, 1767/77 for R. 1,. [1981] 2 S. C.. R. 1768/77 for RR 1, 2, 4, and 5-8, 1773/77 for RR 1-4 and 5 2625/ 77 for R 1, 2511/77 for all the Rfu. 132/78 for R. 3, 930f78 for RR. SLP 1769/76 for RR 1-4, 5 & 7. K. Ram Kumar and Mrs. J.

Rarnacha11dran for the RR in CA 1472/77, CA 1473/77 for RR 1-5, 7, 8, 14, 15 and CA 1485 for all RRs. A. Subba Rao in CA 1434 for RRl. 3, 4, 7. • 8, 9 & 11, in CA • ' 1440/77 for RR 1, 2, 3, 4, 6, 7, 10, 11, 13 & 16, in CA 1457/77 for Respondent (Sole), CA 1459/77 for RR 2, 3 and 4, CA 1484/77 for RR 1-2, 16-20, 22, 23, 28, 30, 32, 35 and in CA 1764/77 for Respondent (Sole). G. Narasimhulu for all the Respondents in CA 1781/77. B. Kanta Rao for RR 1-3 in CA 1441/77, in CA 1442/77 for RR. 4, 8-11, 14, 15, 23 and 24, in CA 1769/77 for RR 1-35, 37-47, 49-62, 64, 65, 67-79, 81-83, 85, 87, 89, 91-99, 101-104, 106-108, 110-114, 116-117, 119-123, in CA 2670 for RR 1-5, 7-12 and 14-16 and 19-20 and in SLP 251/79 for RR 1-8. The Judgment of the Court was delivered by SEN, J.

-This and the connected 81 appeals by special leave and seven special leave petitions directed against various judgments and orders of the Andhra Pradesh High Court and the Andhra Pradesh Administrative Tribunal, raise a common question: Whether it is permissible for the State Government of Andhra Pradesh to enforce sub-r. (2) of r. 5 of the Andhra Pradesh Revised Scales of Pay Rules, 1969 (hereinafter referred to as 'the Rules') issued by the State Government under proviso to Art. 309 of the Constitution. That depends I moted to a higher post who drew a pay in that higher post which was less tha. n the minimum of the scale of pay of Selection Grade Deputy Tahsildar, could not draw more pay than that drawn by his senior, al- ' # though he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed. The learned Judge observed : "To • 1 put in the words Chinnappa Reddy, J.

it amounts to denial of the (I) [1968] 3 S. C. R. 575. principle of 'equal pay for equal work' enshrined in Art. 39 of the Constitution as one of the Directive Principles of State Policy and violates Arts. 14 and 16 which guarantee equality before the law and equal opportunity in the matter of public employment. " The ·appellant, in the supplementary affid-avit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning Department {Finance Wing) admits that the judgment of Muktadar, J. , in Krishnamurthy's case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question h-ad become final, or that the Government had lost its right of appeal in other similar matters.

We are really at a loss to appreciate this attitude on the part of lhe Government in showing scant respect to the High Court -although the judgments had become final and the point involved was one and the same. There has been total failure on the part of the Government to reali~e that the replacement by sub-r. (2) of r. 5 of the Rules, of the executive instruction contained in the U. 0. Note, does nc! cure the constitutional vice inherent in the governmenl'al action. - This is nothing but a plea of justification for the Government had, . in the meanwhile, on the strength of the offending U. O. Note and snb-r. (2) of r. 5, promoted thousands of their employees to SeJection Gratle posts in different departments, but fixed their pay at a tPOint lower than ! he pay drawn by their seniors in the next higher grade. There h-ave been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affected.

The Government, instead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts,-- ~- · in compliance with the directions of the High Court, but declined to do so in the c-ase of others on the pretext that the re-fixation would be done only in the case of ema:iloyees who have secured such directions. It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle. We were asked to determine the validity of sub-r. (2) of r. 5. It was urged that the Government wants a clear pronouncement on the extent of their powers • in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub-r. (2) of r. 5. We are afraid, the question does not arise in these appeals. It is quite clear fr,)m the ~ judgments under appeal that the validity of sub-r. (2) of r. S was not in question. We are constrained!

<> o~erve that if the Government wanted to question the correctness of the judgment in D. Krishnamurthy's case, the 'selection grade' provided that if his senior in the higher finality which cannot now be upset. In that judgment, Muktadar, J. , , struck down sub-r. (2) of r. 5 as ultra vire~ the Government as being violative of Arts. 14 and 16 of the Constitution and as being not in conformi·ty with FR 22(a) (ii). The effect of the judgment of 8 Muktad:ir, J. , in Krishnamurthy's case (supra) is that sub-r. (2) of r. 5 is wiped out for all purposes and the re-fixation will have to be done • as if sub-r. (2) of r. 5 never existed. The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted. In the result, the appeals and the specioal leave petitions are dis- C missed. There shall be no order as to costs. N. V. K. Appeals & Petitions dismissed. , •