RAJESH PRAVINCHANDRA RAJYAGURU versus GUJARAT WATER SUPPLY & SEWERAGE BOARD AND ORS. on 17 December 2021

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SUPREME COURT REPORTS

[2021] 9 S.C.R.

ARAJESH PRAVINCHANDRA RAJYAGURU

v.

GUJARAT WATER SUPPLY & SEWERAGE BOARD AND ORS.

(Civil Appeal No. 7578 of 2021)

BDECEMBER 17, 2021

[DR. DHANANJAYA Y CHANDRACHUDAND M.R. SHAH, JJ.]

Service Law – Grant of pay-scales – Autonomous body vis-à-vis State Government – Claim for parity – Appellants worked asCdaily rated employees with the Respondent-Board – Respondentadopted a Resolution in 1988 (the Parent Resolution) passed byState Government granting benefits to the skilled daily wagerworkmen – Appellants were accordingly granted pay scale of Rs.750and other benefits flowing from the said Resolution – SubsequentDResolutions issued by State Government in 1991 and 1992 modifiedthe Parent Resolution, granting pay scale of Rs.950-1500 to a classof daily wagers as specified therein – Appellants claimed entitlementto the aforesaid pay scale – Writ petition allowed by Single Judge –Order set aside by Division Bench – On appeal, held: Board neveradopted the subsequent Resolutions – Appellants working with theErespondent, an autonomous body cannot claim parity with theemployees of the State Government – State Government and theautonomous bodies cannot be put at par – Appellants cannot claimthe benefits flowing from the subsequent Government Resolutionsas a matter of right – Further, benefits under the subsequentFresolutions were mistakenly given by some of the zonal offices, whichsubsequently came to be withdrawn and recovery was also sought – Appellants cannot claim parity with such other daily ratedemployees by invoking Article 14 if they otherwise are not entitledto such benefit – Constitution of India – Article 14 – Principle ofequal pay for equal work.G

Service Law – Fixation of wage/pay-scale – Held: Economicviability or the financial capacity of the employer is an importantfactor while fixing the wage structure – Employees cannot claimthat their pay-scales should necessarily be revised and/or they mustbe granted certain additional benefits/benefits – Granting of pay H

parity by Courts may result in a cascading effect having adverseconsequences.

Constitution of India – Article 14 – Principle of positiveequality – Held: Article 14 embodies concept of positive equalityalone and not negative equality – It cannot be relied upon toperpetuate illegality and irregularity.

Dismissing the appeals, the Court

HELD: 1.1 The Board never adopted the subsequentResolutions dated 01.05.1991 and 15.02.1992. The parentResolution dated 17.10.1988 was specifically approved by theBoard vide communication dated 08.06.1989. On the contrarythe administrative instructions vide communication dated29.08.1991 were issued to all the Chief Engineers of zonal officesthat benefits pursuant to Government Resolution of 1991 arenot to be granted to the daily rated employees of the Board. Rightfrom adopting the parent Resolution dated 17.10.1988, theRespondent-Board granted benefits under the parent Resolutionto all the original writ petitioners-daily rated employees upontheir completion of 5 years and of 10 years. Therefore, as suchthe Board which is an autonomous and statutory body createdunder the Act never adopted the Government Resolutions dated01.05.1991 and 15.02.1992 and unless the said Resolutions areadopted by the Respondent-Board, the daily rated employeesworking with the Respondent-Board shall not be entitled to thebenefits flowing from the subsequent resolutions. There shallnot be automatic adoption and/or applicability of the subsequentresolutions. Under the circumstances as rightly held by theDivision Bench, the daily rated employees of the Respondent –Board cannot claim the benefits from the Resolutions of 1991and 1992 as a matter of right. [Para 13.2][861-E-H; 862-A-B]

1.2 Even being the daily rated employees working with theRespondent-Board they cannot claim the parity with theemployees of the State Government. The Respondent-Board isan autonomous and statutory body created under the Act. It isultimately for the Respondent-Board to take a conscious decisionwhich can be termed as a policy decision on the pay scales to be AB

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Aadopted and/or certain benefits which would have financialimplications. Everything depends upon its economic viability orthe financial capacity. The economic viability or the financialcapacity of the employer is an important factor while fixing thewage structure, otherwise the unit itself may not be able tofunction and may have to close down inevitably and haveBdisastrous consequences for the employees themselves. Theemployees cannot legitimately claim that their pay-scales shouldnecessarily be revised and/or they must be granted certainadditional benefits/benefits. Equation of posts and salary is acomplex matter which should be left to the expert body andCundertakings and the court cannot interfere lightly. Granting ofpay parity by the court may result in a cascading effect havingadverse consequences. There are limitations or qualifications tothe applicability of the doctrine of ‘equal pay for equal work’.The Respondent-Board is an independent entity and it might haveits own financial capacity and therefore its employees cannot claimDparity with the employees of the State Government. The StateGovernment and the autonomous Board/bodies cannot be put atpar. The Board has to depend upon their own financial resources.Therefore, the daily rated employees of the Board cannot as amatter of right claim the parity of pay scales with the GovernmentEemployees. The Single Judge erred in directing the Board togrant the benefits flowing from the Government Resolutions dated01.05.1991 and 15.02.1992 which is rightly set aside bythe Division Bench of the High Court. [Paras 13.3-13.6, 14][862-C-H; 863-C-D, F-G]F1.3 So far as the submission on behalf of the original writpetitioners which was accepted by the Single Judge that as numberof other daily rated employees of the Board were granted thebenefits flowing from the Resolutions of 1991 and 1992, not payingsimilar benefits to the remaining daily rated employees would bediscriminatory and violative of Article 14 of the Constitution ofGIndia is concerned, it is required to be noted that as such rightfrom the very beginning it was the case on behalf of theRespondent-Board that the benefits under the Resolutions of1991 and 1992 were inadvertently and mistakenly given by someof the zonal offices, which subsequently came to be withdrawnH

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and even the recovery is also sought. The original writ petitioners-daily rated employees of the Board are not entitled to the benefitsflowing from the Government Resolutions of 1991 and 1992.Therefore, they cannot invoke Article 14 of the Constitution toclaim benefit on the ground of parity if they otherwise are notentitled to such benefit. As per the settled proposition of lawArticle 14 of the Constitution embodies concept of positiveequality alone and not negative equality. It cannot be relied uponto perpetuate illegality and irregularity. Challenge to theimpugned judgment passed by the Division Bench of the HighCourt fails. [Para 15][863-G-H; 864-A-C]

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State of Gujarat and Others v. PWD Employees Unionand others, (2013) 12 SCC 417: [2013] 10 SCR 1091– held inapplicable.

State of U.P. & Others v. Rajkumar Sharma & Others,(2006) 3 SCC 330 : [2006] 2 SCR 877; State of WestBengal & Others v. Debasish Mukherjee & Others,(2011) 14 SCC 187 : [2011] 13 SCR 1077; PunjabState Cooperative Milk Producers Federation Limitedand Another v. Balbir Kumar Walia and Others, (2021)8 SCC, 784 2021 (7 ) JT 275 – relied on.

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P. Singaravelan & Others v. District Collector, Tiruppurand DT and Others, (2020) 3 SCC 133 : [2019] 15SCR 408; Secretary, Finance Department and Othersv. West Bengal Registration Service Association &Others, 1993 Supp (1) SCC 153; State of Bihar andOthers v. Bihar Secondary Teachers Struggle Committee,Munger and Others, (2019) 18 SCC 301 – referred to.

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No.7578of 2021.

From the Judgment and Order dated 24.07.2020 of the High Courtof Gujarat at Ahmedabad in Letters Patent Appeal No.82 of 2020.

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Civil Appeal No.7579 of 2021.

Sanjay Parikh, Sr. Adv., Pukhrambam Ramesh Kumar, SatwikParikh, Ms. Anupama Ngangom, Karun Sharma, Advs. for the Appellant.

Ms. Aastha Mehta, Ms. Vishakha, Ms. Deepanwita Priyanka,CAdvs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. As common question of law and facts arise in these two appealsDboth these appeals are decided and disposed of together.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Gujarat at Ahmedabad in LettersPatent Appeal No.82 of 2020 by which the High Court has allowed thesaid appeal preferred by Respondent no.1 herein – Gujarat Water SupplyEand Sewerage Board (hereinafter referred to as ‘the Board’) and hasquashed and set aside the judgment and order passed by the learnedSingle Judge passed in Special Civil Application No.16470 of 2018 bywhich the learned Single Judge allowed the said writ petition preferredby the appellants herein and held that the appellants herein – originalrespondents are entitled to the pay scale of Rs.950-1500 with allFconsequential benefits upon completion of 10 years of service and revisedtheir pay scale as per 5[th], 6[th] and 7[th] Pay Commission scales on suchbasis, the original writ petitioners have preferred the present appeal.

3. In another Letters Patent Appeal No.179 of 2020, the DivisionBench of the High Court has just followed its decision in Letters PatentGAppeal No.82 of 2020 which is the subject matter of another appeal.Therefore, for the sake of convenience the facts in Civil Appeal No.7578 of 2021 arising out of the impugned judgment and order passed bythe High Court in Letters Appeal No.82 of 2020 are narrated andconsidered and the said appeal be treated as a lead appeal.

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4. That the Respondent – Board has been formed under theGujarat Water Supply and Sewerage Board Act, 1978 (hereinafterreferred to as ‘the Act’) for rapid development and proper regulation ofthe water supply and sewerage activities in the State of Gujarat. Till theBoard frames its own Rules and Regulations, the Board had, for betteradministration, decided through a Resolution dated 06.08.1980 to followthe Rules, Regulations, Circulars, Policies, Instructions and all Schemesof the State Government from the date of formation of the Board. Itappears that there were many daily wagers working under variousdepartments of the State Government for past several years. With aview to resolve the issue relating to service condition of daily wagersengaged in maintenance and repairing work a committee called ‘ShriDaulatbhai Parmar Committee’ was constituted under the Chairmanshipof the then Minister of Roads and Building Department – Shri DaulatbhaiParmar. On the basis of the recommendations made by the Committee,Government of Gujarat passed a Resolution dated 17.10.1988 whereinthe Government and decided to give certain benefits to the skilled dailywager workmen depending upon the period of services undergone, i.e.less than 5, 5 or more or 10 years.

4.1 As per scheme contained in Resolution dated 17.10.1988 allthe daily wage workers were not entitled for regularization or permanencyin the services. As per the said Resolution the daily wagers are entitledto the following benefits:

“(i) They are entitled to daily wages as per the prevailing DailyWages. If there is presence of more than 240 days in first year,daily wagers are eligible for paid Sunday, medical allowance andnational festival holidays.

(ii) Daily wagers and semi-skilled workers who has service ofmore than five years and less than 10 years are entitled for fixedmonthly salary along with dearness allowance as per prevailingstandard, for his working days. Such daily wagers will get twooptional leave in addition to 14 misc. leave, Sunday leave andnational festival holidays. Such daily wagers will also be eligiblefor getting medical allowance and deduction of provident fund.

(iii) Daily wagers and semi-skilled workers who has service ofmore than ten years but less than 15 years are entitled to getminimum pay scale at par with skilled worker along with dearness AB

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Aallowance as per prevailing standard, for his working days.Moreover, such daily wagers will get two optional leave in additionto 14 misc. leave, Sunday leave and national festival holidays.He/she will be eligible for getting medical allowance and deductionof provident fund.

B(iv) Daily wagers and semi-skilled workers who has service ofmore than 15 years will be considered as permanent worker andsuch semi-skilled workers will get current pay scale of skilledworker along with dearness allowance, local city allowance andhouse rent allowance. They will get benefit as per the prevailingrules of gratuity, retired salary, general provident fund. Moreover,Cthey will get two optional leave in addition to 14 misc. leave, 30days earned leave, 20 days half pay leave, Sunday leave andnational festival holidays. The daily wage workers and semi-skilledwho have completed more than 15 years of their service will getone increment, two increments for 20 years service and threeDincrements for 25 years in the current pay scale of skilled workersand their salary will be fixed accordingly.”

4.2 That the Respondent – Board adopted the GovernmentResolution dated 17.10.1988 by way of communication dated 08.06.1989.That the respective original petitioners are working as daily ratedEemployees with the Board. That on adoption of GR dated 17.10.1988(hereinafter referred to as the ‘parent Resolution’) by the Respondent -Board all the daily rated employees working with the Board includingthe original petitioners were granted the benefit of the pay scales ofRs.750 and other benefits upon their completion of 5 years services.F4.3 That thereafter vide Resolution dated 01.05.1991, the StateGovernment modified the Resolution dated 17.10.1988. Under themodified GR dated 01.05.1991 it provided that all departments wouldassign administrative work of clerical cadre Class – III to those SCCpass daily wagers who have completed 7 years and it further providedthat such daily wager should be paid pay scale of Rs.950-1500 from theGdate of assignment of duty. Another Resolution dated 15.02.1992 wasissued wherein it was stated that pay of Rs.950 would be granted in thepay scale of Rs.950-1500 w.e.f. 01.05.1991 to all SSC pass daily wagerswho have completed 7 years of service. As observed hereinabove theRespondent – Board granted benefits under the parent Resolution to allHthe writ petitioners and the daily rated employees working with the Board upon their completion of five years and placed them at the basic pay ofRs.2550. That the Respondent – Board also granted benefits under theparent Resolution to all daily rated employees working with the Boardincluding the original writ petitioners upon their completion of 10 yearsand placed them in the pay scale of Rs.2550-55-2600-60-3200.

4.4 It appears that some of the zonal offices of the Boarderroneously and inadvertently extended the benefit of the modifiedResolutions dated 01.05.1991 and 15.02.1992 to unskilled daily wagers.That it came to notice of the Head Office of the Respondent – Boardthat in absence of any policy decision to adopt the Resolutions dated01.05.1991 and 15.02.1992, inadvertently benefit of pay scale of Rs.950-1500 has been granted to certain daily wagers and therefore videinstructions dated 05.06.2015, it was instructed that such benefits shouldnot be granted. In fact, the Respondent – Board withdrew the benefit ofpay scale of Rs.950-1500 granted inadvertently applying the Resolutionsdated 01.05.1991 & 15.02.1992 and even started recovery, which is thesubject matter before the High Court in some other proceedings.

4.5 It appears that the respective original writ petitioners sentvarious representations to the Board to place them in the pay scale ofRs.950-1500 as per the Resolutions dated 01.05.1991 & 15.02.1992 andfurther revision of pay to the extent of Rs.3050-4590. That thereafterthe original writ petitioners approached the High Court by way of SCANo.16470 of 2018 to grant them the benefit of pay scale under theGovernment Resolutions dated 01.05.1991 and 15.02.1992 and to putthem in the pay scale of Rs.950-1500. The said writ petition was opposedby the Board by filing a detailed reply. It was the specific case on behalfof the Board that the modified Government Resolutions dated 01.05.1991and 15.02.1992 are never adopted by the Board like the parent Resolutiondated 17.10.1988. It was also the case on behalf of the Board that insome zonal offices the benefit of Resolutions dated 01.05.1991 and15.02.1992 were inadvertently given which have been withdrawn. Itwas the specific case on behalf of the Board that unless the Boardspecifically adopts the Government Resolutions dated 01.05.1991 and15.02.1992, the original writ petitioners and other daily rated employeesare not entitled to the benefit under the said Resolutions. It was alsosubmitted that there is no automatic adoption of the subsequent resolutions.It was also the case that as the others were given the benefit of theGovernment Resolutions dated 01.05.1991 and 15.02.1992 inadvertently A

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Aand by mistake and in fact the same are sought to be withdrawn/withdrawn, the writ petitioners cannot claim the parity. That by judgmentand order dated 15.10.2019, the learned Single Judge allowed the writpetition and directed the Board to grant the benefits of pay scale ofRs.950-1500 to the original writ petitioners – daily rated employees withall consequential benefits upon completion of 10 years of service andBrevised their pay scales as per 5[th], 6[th] and 7[th] Pay Commission scales onsuch basis. The learned Single Judge also directed to pay the arears.

5. Feeling aggrieved and dissatisfied with the aforesaid judgmentand order passed by the learned Single Judge, the Board preferred theLetters Patent Appeal 16470 of 2018 before the Division Bench of theCHigh Court. By the impugned judgment and order the Division Bench ofthe High Court has allowed the Letters Patent Appeal and quashed andset aside the judgment and order passed by the learned Single Judge byholding that at the subsequent modified Government Resolutions dated01.05.1991 and 15.02.1992 are not adopted by the Board, the daily ratedDemployees of the Board are not entitled to any benefit flowing frommodified Government Resolutions dated 01.05.1991 and 15.02.1992 whichas such are not adopted by the Board.

6. Feeling aggrieved and dissatisfied with the impugnment andorder passed by the Division Bench of the High Court holding that theEoriginal writ petitioners are not entitled to pay scale of Rs.950-1500 andthe benefits flowing from the modified Government Resolutions dated01.05.1991 and 15.02.1992, the original writ petitioners – daily ratedemployees of the Respondent – Board have preferred the presentappeals.F7. Shri Sanjay Parikh, learned Senior Counsel appearing on behalfof the original writ petitioners has vehemently submitted that as such theDivision Bench of the High Court has erred in quashing and settingaside the well-reasoned judgment and order passed by the learned SingleJudge.G7.1 It is submitted that the learned Single Judge considered everyaspect of the matter and considering the material on record has rightlyheld that the original writ petitioners are entitled to the benefit flowingfrom the Government Resolutions dated 01.05.1991 and 15.02.1992.

7.2 It is further submitted by Shri Parikh, learned Senior Counselthat as such the Respondent – Board passed a Resolution datedH

06.08.1990 that till the Board frames its own Rules and Regulations,Board shall follow the Rules, Regulations, Circulars, Policies, Instructionsand all schemes of the State Government. It is submitted that till date noRules and Regulations are framed by the Board. It is submitted thattherefore the Board is bound to follow and/or act upon its own BoardResolution dated 06.08.1990.

7.3 It is further submitted that even otherwise once the parentResolution dated 17.10.1988 came to be adopted by the Board, allsuccessive amended resolutions shall be applicable and shall have to beimplemented by the Board.

7.4 It is further submitted that the Board being a statutory body,has to adopt all subsequent policy decisions/resolutions in the same mannerin which the parent Resolution was adopted.

7.5 It is further submitted by Shri Parikh, learned Senior Counselfor the original writ petitioners that in fact there are several employeeswho have been granted such benefits under the Government Resolutionsdated 01.05.1991 and 15.02.1992 and only few of the daily ratedemployees like the original writ petitioners are denied the benefit underthe GRs of 1991 and 1992. It is submitted therefore as rightly observedand held by learned Single Judge the action of the Respondent - Boardin denying the benefit of Government Resolutions dated 01.05.1991 and15.02.1992 to some of the daily wage employees would be discriminatoryand violative of Article 14 of the Constitution of India. It is submittedthat out of total 3348 daily rated employees, only 474 daily rated employeeslike the original writ petitioners are denied the benefits of 1991 and 1992Resolutions.

7.6 It is further submitted by Shri Parikh, learned Senior Counselfor the appellants that as such earlier the service of water supply andsewerage was under the control of Government of Gujarat and only onformation of the Board under the Act such activity was transferred tothe Board. It is submitted that therefore, the Board is undertaking theactivities which earlier the Government was performing. It is submittedthat therefore when the Board is the creation of the statute and isundertaking the activities which earlier were carried out by the StateGovernment and the same is funded by the State Government, the dailyrated employees of the Board like the original writ petitioners are entitledto the same benefits which are available to the daily rated employees ofthe other departments of the State Government. Heavy reliance is placed A

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Aon the decision of this Court in the case of State of Gujarat and Othersversus PWD Employees Union and others, (2013) 12 SCC 417.

8. Making above submissions and relying upon the above decision,it is prayed to allow the present appeals and quash and set aside theimpugned judgment and orders passed by the Division Bench and restoreBthe judgment and order passed by the learned Single Judge allowing thebenefits flowing from 1991 and 1992 Resolutions.

9. Present appeals are vehemently opposed by Ms. Aastha Mehta,learned counsel appearing on behalf of the Respondent – Board.

9.1 It is vehemently submitted by Ms. Mehta, learned counselCappearing for the Respondent – Board that in the facts and circumstancesof the case the Division Bench of the High Court has not committed anyerror in allowing the appeals preferred by the Respondent – Board andquashed and set aside the order passed by the learned Single Judge.

9.2 It is submitted that as such the original writ petitioners – dailyDrated employees working with the Respondent – Board have been grantedthe benefit under the parent Resolution dated 17.10.1988. It is submittedthat such benefits have been granted as the Board specifically adoptedthe parent Resolution dated 17.10.1988. It is submitted that however thesubsequent modified Resolutions of 1991 and 1992 have never beenEadopted by the Board. It is submitted that therefore the daily ratedemployees working with the Respondent - Board like the original writpetitioners are not entitled to any benefit flowing from the Resolutions of1991 and 1992. It is submitted that therefore the Division Bench of theHigh Court has rightly held that as the subsequent resolutions of 1991and 1992 are not adopted by the Respondent – Board, the original writFpetitioners – daily rated employees of the Respondent – Board are notentitled to any benefit under the Resolutions of 1991 and 1992.

9.3 Ms. Mehta, learned Counsel appearing on behalf of theRespondent – Board has further submitted that as such and despite thefact that the Resolutions of 1991 and 1992 were never adopted by theGBoard, in some of the zonal offices inadvertently and mistakenly thebenefits under the Resolutions of 1991 and 1992 were given. It issubmitted that immediately when the Head Office came to know,instructions were issued to all the zonal offices to stop granting the benefitunder the Resolutions of 1991 and 1992 and to recover the amountmistakenly given. It is submitted that the subsequent decision in the yearH

2015 withdrawing the benefit under the Resolutions of 1991 and 1992which are given mistakenly and inadvertently is never challenged by theoriginal writ petitioners. It is submitted that therefore the decision towithdraw the benefit flowing from the Resolutions of 1991 and 1992stands.

9.4 It is submitted that the learned Single Judge allowed the writpetitions and directed the Respondent – Board to grant the benefitsflowing from the Resolutions of 1991 and 1992 solely and mainly on theground of discrimination and violation of Article 14 of the Constitution ofIndia by observing that the other daily rated employees working with theRespondent – Board are granted the benefit under the Resolutions of1991 and 1992 and therefore not to pay similar benefits to the originalwrit petitioners is discriminatory and violative of Article 14 of theConstitution of India. It is submitted that however the learned SingleJudge failed to appreciate that as such the benefits which were given tothe other employees have been withdrawn and even the recovery is alsosought. It is submitted that thereafter it cannot be said that the action ofthe Respondent – Board in not granting the benefit under the Resolutionsof 1991 and 1992 can be said to be discriminatory and/or in violation ofArticle 14 of the Constitution of India.

9.5 Ms. Mehta, learned counsel appearing for the Respondent –Board has requested to consider the following chronological list of datesand events:

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9.6 It is submitted that as the Division Bench of the High Courthas rightly appreciated the fact and has rightly held that the original writpetitioners and daily rated employees working with the Respondent –Board are not entitled to the benefits flowing from the GovernmentResolutions of 1991 and 1992.

9.7 It is submitted that even subsequently the Government hasturned down the request for application of benefits under 1991 Resolution.

9.8 It is submitted that as in some of the zonal offices though notentitled, the daily rated employees were granted the benefits under theResolutions of 1991 and 1992 inadvertently and mistakenly, the samecame to be withdrawn and even recovery is sought. Thereafter there isno question of granting any benefit to the remaining daily rated employees.It is submitted that even otherwise the original writ petitioners have toestablish their right to get the benefit under the Government Resolutionsof 1991 and 1992 independently. It is submitted that concept of equalitycannot be allowed in the present case to perpetuate one mistake forother daily wagers.

Reliance is placed in the decision of this Court in the case ofState of U.P. & Others versus Rajkumar Sharma & Others, (2006)3 SCC 330 (para 15); State of West Bengal & Others versusDebasish Mukherjee & Others, (2011) 14 SCC 187 and P.Singaravelan & Others versus District Collector, Tiruppur andDT and Others, (2020) 3 SCC 133.

9.9 It is further submitted by Ms. Mehta, learned counsel appearingfor the Respondent – Board that there cannot be any automatic applicationof subsequent resolutions by the Board. It is submitted that theRespondent – Board is an autonomous and statutory body and free totake its own decision in regard to pay scales. It is submitted that beingthe daily rated employees of the Respondent – Board, they are not entitledto the benefits which are given to the State Government employeesautomatically unless it is adopted by the Board.

9.10 It is submitted that even otherwise as held by this Court in acatena of decisions, issues of revision of pay scales and determinationof pay scales/post should be dealt with by the employer, which dependupon the employers’ financial capacity. Reliance is placed on the decisionsof this Court in the case of Secretary, Finance Department and Othersversus West Bengal Registration Service Association & Others, A

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A1993 Supp (1) SCC 153; State of Bihar and Others versus BiharSecondary Teachers Struggle Committee, Munger and Others,(2019) 18 SCC 301 and Punjab State Cooperative Milk ProducersFederation Limited and Another versus Balbir Kumar Walia andOthers, (2021) 8 SCC 784.

B9.11 It is further submitted that in the present case if the Board isdirected to grant the benefit flowing from Government Resolutions of1991 and 1992 to the daily rated employees working with the Respondent– Board in that case it would have a cascading effect and financialburden upon the Respondent – Board. It is submitted that there shall beadditional financial liability on the Board. It is submitted that there areC3348 daily wager employees. Out of 3348 daily wage employees, 474are not granted the benefits of the 1991 and 1992 Resolutions. It issubmitted that additional financial liability per daily wager would be Rs.5lakhs and therefore considering that 474 employees are not granted,multiplying Rs.5 lakhs into 474 employees, the overall financial liabilityDof the Board comes to Rs.23.7 crores. It is submitted that annually, theadditional burden on the Respondent – Board even with respect to theremaining 474 daily rated employees like the original writ petitionerswould be Rs.2 crores.

10. Making above submissions it is prayed to dismiss the presentEappeals.

11. We have heard learned counsel for the respective parties atlength.

12. The short question which is posed for consideration beforethis Court is whether the original writ petitioners – daily rated employeesFworking with the Respondent - Board are entitled to the benefits flowingfrom subsequent Resolutions dated 01.05.1991 and 15.02.1992? Anotherquestion which is posed for consideration before this Court is whetherthe principle of negative equality shall be applicable in a case where theother employees were wrongly granted the benefits and/or the employeesGwho are claiming the parity shall have to establish their rightsindependently to get the particular benefits?

13. Having heard the learned counsel for the respective partiesand considering the list of dates and events reproduced hereinabove itcan be seen that the writ petitioners are working as daily rated employeeswith the Respondent – Board. The State of Gujarat passed a resolutionH

dated 17.10.1988 wherein the Government decided to grant certainbenefits to skilled daily wager workmen. The Respondent – Board whichis an autonomous body constituted under the Act adopted the Resolutiondated 17.10.1988 and granted the benefits flowing from the GR dated17.10.1988 which is the parent Resolution. It is not in dispute that therespective original writ petitioners – daily rated employees are grantedthe benefits flowing from the parent Resolution dated 17.10.1988.

13.1 However, subsequently the Government issued Resolutionsdated 01.05.1991 and 15.02.1992 by which certain modifications werecarried out in the parent Resolution dated 17.10.1988 and it was providedthat such daily wagers who are SSC passed and have completed 7 years,the Department would assign administrative work of clerical cadre ClassIII and they shall be paid pay scale of Rs.950-1500 from the date ofassignment of duty. The original writ petitioners – daily rated employeesare claiming the benefit flowing from the aforesaid subsequentGovernment Resolutions dated 01.05.1991 and 15.02.1992 mainly onthe ground that other similar daily rated employees have been grantedthe benefit under the aforesaid Government Resolutions of 1991 and1992 and therefore not extending such benefits to other daily ratedemployees – other writ petitioners which is discriminatory and violativeof Article 14 of the Constitution of India.

13.2 However, it is required to be noted that as such the Boardnever adopted the subsequent Resolutions dated 01.05.1991 and15.02.1992. It is required to be noted that the parent Resolution dated17.10.1988 was specifically approved by the Board vide communicationdated 08.06.1989. On the contrary the administrative instructions videcommunication dated 29.08.1991 were issued to all the Chief Engineersof zonal offices that benefits pursuant to Government Resolution of 1991are not to be granted to the daily rated employees of the Board. It is tobe noted that right from adopting the parent Resolution dated 17.10.1988,the Respondent - Board granted benefits under the parent Resolution toall the original writ petitioners – daily rated employees upon theircompletion of 5 years and of 10 years. Therefore, as such the Boardwhich is an autonomous and statutory body created under the Act neveradopted the Government Resolutions dated 01.05.1991 and 15.02.1992and unless the said Resolutions are adopted by the Respondent – Board,the daily rated employees working with the Respondent – Board shallnot be entitled to the benefits flowing from the subsequent resolutions.

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AThere shall not be automatic adoption and/or applicability of the subsequentresolutions. Under the circumstances as rightly held by the DivisionBench, the daily rated employees of the Respondent – Board cannotclaim the benefits from the Resolutions of 1991 and 1992 as a matter ofright. As rightly observed and held they do no have any right to get thebenefits flowing from the aforesaid Resolutions of 01.05.1991 andB15.02.1992 till specifically adopted by the Respondent – Board likeadoption of the parent Resolution dated 17.10.1988.

13.3 Even being the daily rated employees working with theRespondent – Board they cannot claim the parity with the employees ofthe State Government. The Respondent – Board is an autonomous andCstatutory body created under the Act. It is ultimately for the Respondent– Board to take a conscious decision which can be termed as a policydecision on the pay scales to be adopted and/or certain benefits whichwould have financial implications. Everything depends upon its economicviability or the financial capacity. As per the settled proposition of lawDthe economic viability or the financial capacity of the employer is animportant factor while fixing the wage structure, otherwise the unit itselfmay not be able to function and may have to close down inevitably andhave disastrous consequences for the employees themselves. As perthe settled proposition of law the employees cannot legitimately claimthat their pay-scales should necessarily be revised and/or they must beEgranted certain additional benefits/benefits.

13.4 As per the settled proposition of law equation of posts andsalary is a complex matter which should be left to the expert body andundertakings and the court cannot interfere lightly. Granting of pay parityby the court may result in a cascading effect having adverseFconsequences. There are limitations or qualifications to the applicabilityof the doctrine of ‘equal pay for equal work’.

13.5 Being daily rated employees of the Respondent – Board,they cannot claim as of right similar treatment as Government employees.The Respondent – Board is an independent entity and it might have itsGown financial capacity and therefore its employees cannot claim paritywith the employees of the State Government.

13.6 The State Government and the autonomous Board/bodiescannot be put at par. The Board has to depend upon their own financialresources. In the recent decision in the case of Punjab StateH

Cooperative Milk Producers Federation Limited and Another(Supra) it is observed in paragraph 32 as under:

“32. The Central or State Government is empowered to levy taxesto meet out the expenses of the State. It is always a consciousdecision of the Government as to how much taxes have to belevied so as to not cause excessive burden on the citizens. But theBoards and Corporations have to depend on either their ownresources or seek grant from the Central/ State Government, asthe case may be, for their expenditures. Therefore, the grant ofbenefits of higher pay scale to the Central/State Governmentemployees stand on different footing than grant of pay scale byan instrumentality of the State.”

Therefore, the daily rated employees of the Board cannot as amatter of right claim the parity of pay scales with the Governmentemployees.

13.7 In the present case a conscious decision has been taken bythe Board not to adopt the Government Resolutions dated 01.05.1991and 15.02.1992. Even the State Government has refused to extend thebenefits under the Government Resolutions of 1991 and 1992. The Boardhas taken a conscious decision considering the additional financial burdenon the Board if the benefits under the Government Resolutions of 1991and 1992 are allowed.

14. At the cost of repetition, it is observed that unless and until theBoard has specifically adopted the Government Resolutions of 1991 and1992 like adopting the parent Resolution dated 17.10.1988, the daily ratedemployees/employees of the Respondent – Board shall not be entitled toany benefit flowing from the Resolutions of 1991 and 1992. Therefore,the learned Single Judge erred in directing the Board to grant the benefitsflowing from the Government Resolutions dated 01.05.1991 and15.02.1992 which is rightly set aside by the Division Bench of the HighCourt.

15. So far as the submission on behalf of the original writ petitionerswhich was accepted by the learned Single Judge that as number ofother daily rated employees of the Board were granted the benefitsflowing from the Resolutions of 1991 and 1992, not paying similar benefitsto the remaining daily rated employees would be discriminatory andviolative of Article 14 of the Constitution of India is concerned, it is A

B

C

DE

F

G

H

Arequired to be noted that as such right from the very beginning it was thecase on behalf of the Respondent – Board that the benefits under theResolutions of 1991 and 1992 were inadvertently and mistakenly givenby some of the zonal offices, which subsequently came to be withdrawnand even the recovery is also sought. As observed and held hereinabovethe original writ petitioners – daily rated employees of the Board are notBentitled to the benefits flowing from the Government Resolutions of 1991and 1992. Therefore, they cannot invoke Article 14 of the Constitutionto claim benefit on the ground of parity if they otherwise are not entitledto such benefit. As per the settled proposition of law Article 14 of theConstitution embodies concept of positive equality alone and not negativeCequality. It cannot be relied upon to perpetuate illegality and irregularity.

15.1 As held by this Court in the case of Rajkumar Sharma(Supra) in a case of appointments or pay-scales, Article 14 of theConstitution does not envisage negative equality and if State hascommitted the mistake, it cannot be forced to perpetuate the sameDmistake.

15.2 In the case of Debasish Mukherjee (Supra) while dealingwith the concept of equality it is observed in paragraph 26 as under:

“26. It is now well settled that guarantee of equality before law isa positive concept and cannot be enforced in a negative manner.EIf an illegality or an irregularity has been committed in favour ofany individual or group of individuals, others cannot invoke thejurisdiction of Courts and Tribunals to require the state to committhe same irregularity or illegality in their favour on the reasoningthat they have been denied the benefits which have been illegallyFor arbitrarily extended to others. [See : Gursharan Singh vs. NewDelhi Municipal Administration- 1996 (2) SCC 459, Union of Indiavs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of Indiavs. International Trading Co. - 2003 (5) SCC 437, and State ofBihar vs. Kameshwar Prasad Singh- 2000 (9) SCC 94.]”

G16. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand and as observed hereinabovethe daily rated employees of the Board cannot claim as a matter of rightthe benefits flowing from the Government Resolutions dated 01.05.1991and 15.02.1992 and as such they are not entitled to the benefits flowingfrom the said Resolutions of 1991 and 1992 automatically and consideringH

the fact that even subsequently the mistake committed by other zonaloffices have been corrected and the benefits mistakenly and/orinadvertently have been withdrawn and even the recovery sought, thelearned Single Judge committed grave error in holding that the action ofthe Respondent – Board in not granting benefit flowing from theGovernment Resolution of 1991 and 1992 is discriminately and violativeof Article 14 of the Constitution of India. The same is rightly correctedby the Division Bench of the High Court and the Division Bench of theHigh Court has rightly set aside the order passed by the Single judge.

17. Now so far as the reliance placed upon by learned counselappearing on behalf of the original writ petitioners in the decision of thisCourt in PWD Employees Union (Supra) is concerned, the same shallnot be applicable to the facts of the case on hand and/or the same shallnot be of any assistance to the daily rated employees of the Respondent– Board. In the case before this Court the dispute was with respect totwo different departments of the State Government.

As observed hereinabove, the employees of the Governmentdepartments and the employees of the Board as such stand on differentfootings. As observed hereinabove the employees of the Board cannotclaim the parity with that of the Government employees.

18. In view of the above and for the reason stated above challengeto the impugned judgment and order passed by the Division Bench ofthe High Court fails. For the reason stated above, it cannot be said thatthe Division Bench of the High Court has committed grave error inallowing the Letters Patent Appeals and quashing and setting aside thejudgment and orders passed by the High Court. It is held that the originalwrit petitioners – daily rated employees of the Respondent – Board arenot entitled to the benefits flowing from the Government Resolutionsdated 01.05.1991 and 15.02.1992. However, they shall be continued topay or grant the benefits flowing from the parent Resolution dated17.10.1988 which is reported to be implemented and paid. Both theseappeals deserve to be dismissed and accordingly dismissed.

However, in the facts and circumstances of the case there shallbe no order as to costs.

Divya Pandey

Appeals dimissed.

AB

C

D

E

F

G

H