HARYANA STATE ELECTRICITY BOARD & ANR. v. GULSHAN LAL AND ORS

Citation: [2009] 8 S.C.R. 950

Court: Supreme Court of India

Bench: S.B. SINHA, MUKUNDAKAM SHARMA

Case summary

HARYANA STATE ELECTRICITY BOARD & ANR. v. GULSHAN LAL AND ORS.pdf

Judgment text

[2009] 8 S. C. R. 950 , HARYANA STATE ELECTRICITY BOARD & ANR. • V. GULSHAN LAL AND ORS. (Civil Appeal No. 3336 of 2009) MAY 06, 2009 [S. B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ. ] ~ Servici~ Law: Equal pay for equal work - Public employment - Held: For holding public office, employee must possess requisite prescribed qualification, in absence whereof additional reliefs ;cannot be granted to him on basis of judgment passed in earlier cases - Relief granted by competent courl is binding " . on the employer, but, when in a subsequent litigation the absurd result emanating from cascading effect thereof becomes apparent before another courl and and it is found that the said judgment is illegal, by application of Arlicle 14 alone, similar relief cannot be granted - ConstitJtion of India, 1950 - Arlicle 14. .. Promotion - Entitlement to - Held: Promotion cannot be ... claimed as a matter of right - If employee while working in a ,.

parlicular grade does not acquire experience of working therein, he cannot be promoted to the next higher grade when experience in the immediately below post forms part of essential qualification. Doctrines - Doctrine of 'equal pay for equal work' - ~ Applicability of - Held: Same or similar nature of work, by ~ .... itself, does not entitle an employee to invoke the doctrine of equal pay for equal work - Qualification, experience etc. would be relevant for the said purpose. GULSHAN LAL AND ORS. Maxims - Maxim "actus curiae neminem gravabit" - ~ Nobody should suffer owing to mistake on part of Court. Appellant has two thermal power plants, one at Faridabad and the other at Panipat. In view of alleged discrepancies in the scale of pay payable to holders of the same post at the two plants, some employees at the Faridabad plant viz. Anil Kapoor and others, filed suit .. '{ claiming higher pay scale as paid to their counterparts in the Panipat plant. The suit was decreed.

After passing of the decree in the suit filed by Anil Kapoor and others, Respondents prayed for entitlement to higher pay scales, on the ground that they were senior to Anil Kapoor and others in rank/designation. The prayer ' . ~ was allowed by the courts below. Hence the present appeal. Allowing the appeals, the Court HELD: 1. Appellant is a State within the meaning of Article 12 of the Constitution. For holding a public office, an employee must possess the requisite prescribed ~· qualification, in absence whereof the additional reliefs ~ could not have been granted to them relying on or on the basis of the judgment passed in the earlier cases. Conditions of service of the employees of the appellants are governed by the statutory rules. Violation thereof is impermissible in law. Whereas the appellants are bound by the doctrine of equality as envisaged under Article 14 of the Constitution, it is also well-settled that unequals # •-4 cannot be treated as equals.

Herein, equality doctrine has been invoked only on the basis of relief granted in the case of Anil Kapoor. In Anil Kapoor's case, a writ petition was also filed for the purpose of grant of designation. The ' t same has rightly or wrongly been allowed. That would not mean that equality can be claimed on the basis thereof which would lead to a wholly anomalous situation. Decree granted by a competent court of law is 8 no doubt binding on the employer. But, when in a subsequent litigation the absurd result emanating from the cascading effect thereof becomes apparent before "· another court and it is found that the said judgment is illegal, it is well-settled, that by application of Article 14 of the Constitution alone, similar relief should not be granted.

In the present case, the cascading effect was that for all intent and purport, those who were above Anil Kapoor and others in the seniority list derived benefit irrespective of the fact as whether they were qualified to hold the post and/or otherwise gained sufficient "' . experience for promotion to the post. [Para 27] [972-E-H; 973-A-E] 2. It cannot be said that the right to obtain same remuneration would carry with it the designation also. Promotion to a higher post cannot be claimed as a matter of right. Before a person claims promotion, subject of ... ... course to just exceptions, the prevailing rules must be followed. If the employee concerned while working in a particular grade does not acquire experience of working therein, he cannot be promoted to the next higher grade although experience in the immediately below post forms part of an essential qualification.

A person, thus, who is ineligible to hold the post cannot be directed to be promoted thereto only on the ground of so called equality doctrine or otherwise. In the present case, the Trial Judge ~. '" following the case of Anil Kapoor and Kashmir Singh had evidently not only directed grant of scale of pay but also an additional relief viz. designation. It was also wholly GULSHAN LAL AND ORS. impermissible in law. [Paras 28 and 30] (973-E-H; 974-B- CJ 3. It is one thing to say that having regard to the provisions contained in Article 39(d) of the Constitution read with Article 14 thereof, a court invokes the doctrine of equal pay for equal work but the same would not mean , '/ that a person is not only granted the same relief but also granted a higher status to which he was not otherwise . entitled to. [Para 31] (974-C-D] 4. The doctrine of equal pay for equal work cannot be applied automatically. Application of the said doctrine involves several factors.

Same or similar nature of work, ;~)r by itself, does not entitle an employee to invoke the doctrine of equal pay for equal work. Qualification, experience and other factors would be relevant for the said purpose. [Paras 32 and 34] [974-F-G; 975-0] Deb Narayan Shyam v. State of WB. (2005) 2 SCC 286 and Union of India v. Mahajabeen Akhtar (2008) 1 SCC 368, referred to. ,. , ; 5. From the averments made in the plaint, it is evident that the premise on which the Respondents could claim a higher designation had not been specified. Furthermore, neither the Trial Judges nor the High Court considered the effect of abolition of certain posts as also redesignation thereof. (Paras 35 and 36] [975-E-F] 6. One is not oblivious of the fact that anomalous •4 situation would be created in the sense that juniors of the respondents may be getting a higher pay but things as they stand cannot be allowed to continue. It has a cascading effect, viz.

, those employees who are junior to the respondents and/ or even Anil Kapoor and others would be entitled to claim parity in the scale of pay as also in designation. However, nobody should suffer owing to the mistake on the part of the court in view of the maxim actus curiae neminem gravabit. [Paras 39 and 40] [978- C-E] Coromandel Fertilizers Ltd. v. Union of India and Others 1984 (Supp) SCC 457, referred to. Case Law Reference: (2005) 2 sec 286 referred to Para 33 (2008) 1 sec 368 referred to Para 33 (1984) SUPP SCC 457 referred to Para 38 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3336 of 2009. From the Judgment &Order dated 24. 04. 2006 of the High / Court of Punjab &Haryana at Chandigarh in Civil Writ Petition No. 12819 of 2003. With ' C. A. No. 3362, 3363, 3364, 3365, 3366, 3367, 3368, ·3369, 3370, 3371, 3372 and 3373 of 2009.

Paramjit Singh Patwalia, Salman Khurshid, Mahabir Singh, Arunabh Chowdhury, Aman Preet Singh Rahi, Arijit Bhaumik, {Ruby Singh Ahuja) Rishi Malhotra, Prem Malhotra, M. P. Jha, Ram Ekbal Roy, Harshvardhan Jha and Rc::kesh Dahiya (for D. Mahesh Babu) for the appearing parties. The Judgment of the Court was delivered by S. B. SINHA, J. 1. Leave granted. GULSHAN LAL AND ORS. [S. B. SINHA, J. ] 2. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated 24. 04. 2006 passed by Division Bench of the Punjab and Haryana High Court in several writ petitions filed by the respondents herein allowing their writ 1 petitions. 3. Appellant is constituted and registered under the Electricity (Supply) Act, 1948. It is engaged in generation and supply of electrical energy in the State of Haryana. It generates thermal power at two places, viz. , Panipat and Faridabad. Both the said plants appear to have different cadre strength.

For better appreciation of designations of different cadres carried out in the said two thermal power plants, we may notice the following chart : Thermal Power Station at Panipat Thermal Power Station at Faridabad Scale Name of Pay Scale Name of Pay w. e. f. Post Scale w. e. f. Post Scale 01. 04. 79 Sr. Technician 700-1250 01. 04. 79 Sr. Technician 450/760 Technician 600-1100 (lnstrumentalion) Technician (lnstrumentalion) 400/700 01. 01. 86 Sr. Techniaian 1600- 01. 01. 86 Sr. Technician 1200- , (Re-designated 2600 (lnstrumen- 2040 as Foreman talion) Gr. -1 as on (Re-designated 15. 01. 86 as Technician Gr. - I as on 15. 01. 86) Technician 1400- Technician 950-1500 (Re-designated 2600 (lnstrumenas Foreman talion) Gr. - II) (Re-designated as Technician Gr. - II as on 15. 01. 86 15. 01. 86 Foreman Gr. I 1640- 01. 05. 90 Foreman Gr. I 1800- 01. 05. 90 Technician 1350- 3105 Gr. I 2200 F -- ......

It was furthermore submitted that all the respondents having requisite qualifications and/ or sufficient experience to hold a higher post, this Court should not interfere with the impugned HAHYANA STATE ELECTRICITY BOARD & ANR. v. 971 \, judgment. It was urged that there does not exist any anomaly, as ha1s been submitted on behalf of the appellants, with regard to pay scales so far as the Senior Technicians and Technicians of th13 Faridabad Plant are concerned vis-a-vis the Panipat Plant. In any view of the matter as either before the learned Trial Judge as also before the High Court no grievance had been . -- ~. raised to the effect that the respondents had not been holding sufficient qualification or experience nor having raised any other contention which have been raised before us for the first time, this Court may not permit the appellants to do the same. :24. The Board by an office order dated 27. 05.

1985 issued the following revised recruitment and promotion policy for the employees working in the Thermal Power Projects of the > ... l Board: *** *** 8. Foreman Grade - I (Scale Rs. 700/1250, SG 750/1450 for 20% posts) (i) 10% shall be filled up by direct recruitment by Matriculates wich ITI two years course with eight ,,,. years experience or 8th Class with ITI two years Course and eleven years experience. (ii) 90% shall be filled up by promotion from Foreman Gr-II with four years experience/ service as such. " ! 19% of the respondents, we are informed, do not fulfill these basic/ essential qualifications. "'" ~ 25. So far as the promotion to the posts of Foreman Grade II and Ill is concerned, the experience in the next below post was a requisite criterion but as would appear from the discussions madE~ hereinafter none of the respondents had the experience in the next below post.

• -{ For the purpose of proper appreciation of the question involved, we may notice the qualifications held by the respondents. In Civil Appeals arisirig out of SLP (C) No. 15718 of 2006 (Gulshan Lal's case) and SLP (C) No. 15758 of 2007 (Kashmir Singh's case), some of the respondents are not even .... .. matriculate. For example, qualification of some respondents is only 3rd class, 6th class etc.. In Civil Appeal arising out of SLP (C) No. 20792 of 2006, most of the respondents are not having even the qualification of matric. Qualification of one of the respondents, viz. , Chaman Lal is only 2r. d Class. Similarly in other appeals also, some respondents are not even matriculates. Some have passed only . ; ' 4th standard, 5th standard and 6th standard examinations 26. The question, which, therefore, arises for consideration is as to whether such unusual two/three/four promotions in the hierarchy is permissible in law. Evidently, it is not. 27.

Appellant is a State within the meaning of Article 12 of the Constitution of India. For holding a public office, an " '· employee must possess the requisite prescribed qualification, in absence whereof the additional reliefs could not have been granted to them relying on or on the basis of the judgment passed in the earlier cases. Conditions of service of the employees of the appellants are governed by the statutory rules. Violation thereof is impermissible in law. Whereas the appellants are bound by the doctrine of equality as envisaged under Article 14 of the Constitution of India, it is also well-settled }. -, ~-that unequals cannot be treated as equals. Herein, equality doctrine has been invoked only on the basis of relief granted in the case of Anil Kapoor. In Anil Kapoor's case, a writ petition • was also filed for the purpose of grant of designation. The same " has rightly or wrongly been allowed. That would not mean that ...

equality can be claimed on the basis thereof which would lead to a wholly anomalous situation. Decree granted by competent court of law is no doubt binding on the employer. But, when in a subsequent litigation the absurd result emanating from the cascading effect thereof becomes apparent before another court and it is found that the said judgment is illegal, it is well-settled, that by application of Article 14 of the " "' Constitution of India alone, similar relief should not be granted. Equality clause carries with it a positive effect. It signifies treating 1 persons. equally who are situated similarly. Those who had been occupying the position of Foreman Gra-:1;; - I and/ or Foreman Grade - II and other employees who were far below them either for the purpose of seniority or otherwise could not have been treated equally.

The cascading effect thereof would be that for ~ 1all intent and purport those who are in the joint seniority list being above Anil Kapoor and others in the seniority list wou~d derive the same benefit irrespective of the fact as to whether they are qualified to hold the post of Foreman Grade - I and/ or othE~rwise gained sufficient experience therefor for promotion to that post. 28. Submission of Mr. Salman Khurshid that the right to + obtain same remuneration would carry with it the designation ·" also is not correct. Promotion to a higher post cannot be claimed as a matter of right. Before a person claims promotion, subject of course to just exceptions, the prevailing rules must be followed. If the employee concerned while working in particular grade does not acquire experience of working therein, he cannot be promoted to the next higher grade although experience in the immediately below post forms part of an essential qualification.

- --4: A person, thus, who is ineligible to hold the post cannot be dir,ected to be promoted thereto only on the ground of so called equality doctrine or otherwise. 29. We have noticed hereinbefore that even in Kashmir • --{ Singh's case, the High Court committed a serious illegality in ,. treating the Senior Technicians and Technicians together. Similar reliefs were granted to both the categories of employees which was impermissible. 8 30. The basis on which the other judgments were passed, viz. , the decision of the High Court in the second appeal is I. · subject matter of one of the SLPs. The Trial Judge following ·~ the case of Anil Kapoor and Kashmir Singh had evidently not only directed grant of scale of pay but also an additional relief viz. designation. It was also, in our opinion, wholly impermissible in law. 31. It is one thing to say that having regard to the provisions contained in Article 39(d) of the Constitution of !

ndia read with Article 14 thereof, a court invokes the doctrine of equal pay for 1 4 equal work but the same wowd not mean that a person is not only granted the same relief but also granted a higher status to which he was not otherwise entitled to. 32. In these appeals, the legality or otherwise of the judgment of the High Court passed in Regular Second Appeal No. 281 of 2001 itself is in question. We have noticed hereinbefore that the High Court proceeded on the basis that + the second appeal had been dismissed although the same was " merely dismissed for default and which has since been restored. Merit of the matter was considered at a later stage. decision rendered on merit by the High Court. being open to question, in our opinion, this Court is entitled to go thereinto. It is a trite law that the doctrine of equal pay for equal work cannot be applied automatically. Application of the said doctrine involves several factors. . _ - 33. In Deb Narayan Shyam v. State of WB.

[(2005) 2 SCC 286], this Court held: HAHYANA STATE ELECTRICITY BOARD & ANR. v. 975 • ). "A large number of decisions have been cited before us with regard to the principle of "equal pay for equal work" • by both sides. We need not deal with the said decisions to overburden this judgment. Suffice it to say that the principle is settled that if the two categories of posts perform the same duties and functions and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly ,,,. " situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work. " {See also Union of India v. Mahajabeen Akhtar [(2008) 1 sec 368]} ~ J. 34. Same or similar nature of work, by itself, does not entitle an employee to invoke the aoctrine of equal pay for equal work.

Qualification, experience and other factors would be relevant for the' said purpose. 3! 5. From the averments made in the plaint, it is evident that the premise on which they could claim a higher designation had not been specified. Respondents herein in their respective ~ plaints admit that they have been working on a much lower grade than the post of Senior Technician or Technician. "' 3€i. Furthermore, neither the learned Trial Judges nor the High Court considered the effect of abolition of certain posts as also re-designation thereof. It is furthermore evident that Gulsha1n Lal and others having been working in Technician Grade - II could not have claimed parity with those who had been occupying the post of Senior Technician. ... _J 37. It may be true that this Court has dismissed the special leave petition on the ground of delay. The same, however, does not preclude us from considering the matter on merit. We would therefoir assume that even no appeal was filed.

Even in such - situation, this Court in State of Maharashtra v. Digambar • -,(' [(1995) 4 sec 683] considered the following contention: ,, "9. Shri Ashok Desai, in his reply to the submissions made on behalf of the respondent and others who had obtained judgments in their favour from the High Court on the basis of the judgment impugned in this appeal, did not dispute the position that certain judgments of the High Court in lo; similar matters had not been appealed against by the . ,. State in this Court. But, according to him such a thing had happened obviously under an impression that they were stray cases and not fit enough to be appealed against before this Court, having regard to smallness of the amounts involved. When the High Court allowed certain other writ petitions based on its earlier judgments in similar matters, the State, according to him, inevitably filed SLPs l • in this Court in respect of latter judgments, but, unfortunately those SLPs hJd come to be dismissed.

But, when the High Court allowed the writ petition by the judgment under appeal and when that judgment was followed in allowing other 191 writ petitions and when innumerable persons were trying to take advantage of the said judgments of the High Court to file further writ petitions which was estimated to involve an expenditure of about ~ 400 crores of rupees for the State of Maharashtra, there ... was no escape from filing the special leave petition out of which the present appeal has arisen and other SLP/SLPs to wriggle out of the unanticipated situation. It was his submission that in the peculiar facts and circumstances adverted to by him, the earlier non-questioning of certain judgments of the High Court in this Court and the dismissal of SLPs in limine by a Division Bench of this Court filed against a few judgmE3nts of the High Court, cannot be a ~- ...

bar against the State filing this appeal against the judgment concerned seeking a decision of this Court on merits, when the judgment impugned was wholly unsustainable and called for interference so that the State Government GULSHAN LAL AND ORS. [S. B. SINHA, J. ] ~ )( may be saved from the calamitous situation which it had ,. .... to face otherwise on account of 191 judgments rendered by the High Court by following it and when innumerable persons were waiting to take advantage of the judgment by filing fresh writ petitions in the High Court. " The said contention was negatived, holding: .

, -~ "Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter/s where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely ~ ~ to seriously jeopardise the interest of the State or public interest.

It was observed : "Therefore, the fact that the State has faUed to file appeals in :similar matters or this Court has rejected SLPs in similar matters, cannot be held to be a total bar or a fetter for this Court to entertain appeals under Article 136 of the ~ , Constitution against similar judgments of the High Court where need to entertain such appeals is found necessary to meet the ends of justice, in that, the ambit of power invested in this Court under Article 136 allows its exercise, wherever and whenever, justice of the matter demands it for redressal of manifest injustice. " 38. Yet again in Coromandel Fertilizers Ltd. v. Union of India and Others [1984 (Supp) SCC 457], it was held: .. -__. +. "13. Mr Setalvad made a grievance that the authorities concerned had allowed the benefit of the notification under similar circumstances to a rival company. If the grievance of the appellant is true, the appellant may no doubt have • )( reasons to feel sore about it.

We have, however, to point out that the grievance of the appellant even if it is well founded, does not entitle the appellant to claim the benefit of the notification. A wrong decision in favour of any particular party does not entitle any other party to claim the bE~nefit on the basis of the wrong decision. We are, 8 therefore, clearly of the op:nion that the fertilizer ). ;- . ,. manufactured by the appellant in respect of which claim for exemption under the notification is made is not a mixed fertilizer within the meaning and scope of the notification and we have no hesitation in rejecting the case of the appellant, expressing our agreement with the reasons stated in the judgment of the High Court. " 39. We are not oblivious of the fact that anomalous situation would be created in the sense that juniors of the .. -l respondents may be getting a higher pay but things as they stand cannot be allowed to continue. It has a cascading effect, viz.

, those employees who are junior to the respondents and/ or even Anil Kapoor and others would be entitled to claim parity in the scale of pay as also in designation. 40. It is now a well-settled principle of law that nobody should suffer owing to the mistake on the part of the court in ~ view of the maxim actus curiae neminem gravabit. .... 41. We, therefore, are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly. The appeals are allowed. However, in the facts and circumstances, there shall be no order as to costs. 8. 8. 8. Appeals allowed. ~- ..