PUNJAB STATE ELECTRICITY BOARD AND ANOTHER versus THANA SINGH AND OTHERS on 8 January 2019

330

SUPREME COURT REPORTS

[2019] 1 S.C.R.

APUNJAB STATE ELECTRICITY BOARD AND ANOTHER

v.

THANA SINGH AND OTHERS

(Civil Appeal No. 193 of 2019)

B

JANUARY 08, 2019

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Service Law – Parity of Pay Scale – When cannot be granted– Respondents, included in Group XII of the appellant-Board, wereworking as Sub Fire Officers in the appellant-Board – RespondentsCclaimed parity of pay scale with other three classes within GroupXII viz., Head Clerks, Head Clerk-cum-Divisional Accountants andInternal Auditors – Single Judge allowed the writ petition – DivisionBench dismissed the appeal filed by the appellant – On appeal,held: Work performed by the Sub Fire Officer is entirely differentDfrom the nature of duties performed by the other three posts withinthe same group – Appellant is an autonomous body – It was for theappellant to classify its employees/posts on the basis ofqualifications, duties and responsibilities of the posts concerned –If the classification has reasonable nexus with the objective soughtto be achieved, the appellant would be justified in prescribingEdifferent pay scales – Further, burden of establishing parity in payscale and employment is on the person claiming such right –However, the respondents did not produce any material to showthat there is any similarity/identity between them and the Head Clerks,Head Clerk-cum-Divisional Accountants and Internal Auditors inFterms of the nature of duties, responsibilities, qualifications andmode of recruitment to claim parity of pay scale – Determination ofparity or disparity in duties and responsibilities is a complex issueand the same should be left to the expert body – When the expertbody considered revision of pay for various posts, it did not revisethe pay scale of Sub Fire Officers – Only in cases of completeGsimilarity in the nature of work, duties, responsibilities andpromotional channels, parity of pay scale can be claimed – In thepresent case, nature of work, duties, responsibilities and initialqualification for recruitment of each post are entirely different asall these posts belong to different cadre – Mere difference in payH

scale does not always amount to discrimination, it depends uponthe mode of selection/recruitment, nature, quality of work and dutiesand the status of both the posts – Judgment of the Single Judge andthe impugned judgment of the Division Bench set aside.

Allowing the appeal, the Court

HELD: 1.1 The duties and nature of work of Head Clerksand Internal Auditors are entirely different. Head Clerks workunder XEN, Drawing and Disbursement Officer and there is onlyone Head Clerk in the Division Office. Head Clerk is the Headof the establishment in the Divisional Office and total work of theestablishment is under the control of the Head Clerk. Head Clerkalso maintains the leave and other miscellaneous works for theSub-divisions and the Division Offices and also dischargesadministrative functions and thus, has more responsibilities. Dutyof an Internal Auditor is to audit the billing of the RevenueDepartment of the Sub-division Office which includes billing ofdomestic supply to large supply. Whereas the duty of the SubFire Officer is entirely different viz., rush to the spot of emergencyalong with firefighting equipment crew, direct and supervisefirefighting and rescue operations, arrange for extra fire fightingequipments, if need be discharge mechanical foam, dry chemicalpowder, etc. and inform the fire pump house for continuousrunning of pumps and also inform Fire Officer/Sr.Xen/Fire andSafety regarding incident. Thus, the work performed by the SubFire Officer is entirely different from the nature of dutiesperformed by the Head Clerks and the Internal Auditors. [Para18][339-H; 340-A-D]

1.2 The appellant-Board being an autonomous bodygoverned by its own regulations, it was for the Board to classifyits employees/posts on the basis of qualifications, duties andresponsibilities of the posts concerned. If the classification hasreasonable nexus with the objective sought to be achieved, theBoard would be justified in prescribing different pay scales. Article14 of the Constitution of India would be applicable only when adiscrimination is made out between the persons who are similarlysituated and not otherwise. It is the duty of an employee seekingparity of pay to prove and establish that they have beendiscriminated. [Para 19][340-D-E]

A

B

C

DE

F

G

H

A1.3 The person claiming parity must produce material beforethe court to prove that the nature of duties and functions aresimilar and that they are entitled to parity of pay scales. Burdenof establishing parity in pay scale and employment is on the personclaiming such right. There were neither pleadings nor any materialproduced by the respondents to prove that the nature of workBperformed by the Sub Fire Officers is similar with that of theHead Clerks and the Internal Auditors to claim parity of pay scale.Determination of parity or disparity in duties and responsibilitiesis a complex issue and the same should be left to the expertbody. When the expert body considered revision of pay for variousCposts, it did not revise the pay scale of Sub Fire Officers. Whenthe expert body took such a view, it is not for the courts tosubstitute its views and interfere with the same and take adifferent view. [Paras 20, 21][340-G; 341-F-H; 342-A]

1.4 Only in cases of complete similarity in the nature ofDwork, duties, responsibilities and promotional channels, parityof pay scale can be claimed. Merely on the ground that Sub FireOfficers are categorised in Group XII along with Head Clerks,Head Clerk-cum-Divisional Accountants and Internal Auditorscannot be a ground for seeking parity of pay scale. The nature ofwork, duties, responsibilities and initial qualification forErecruitment of each post are entirely different as all these postsbelong to different cadre. That apart, though in the year 1988there were only four posts in Group XII, number of posts havebeen subsequently included. Vide Finance Circular No. 44/89dated 15.06.1989, seven more posts were added in Group XII.FThereafter, vide Finance Circular No.45/89 dated 26.06.1989,there was a further increase of seven posts in Group XII. If thecontention of the Sub Fire Officers for parity of pay scale with payscale of Head Clerks, Head Clerk-cum-Divisional Accountantsand Internal Auditors is accepted, such parity of scale of pay may have to be extended to all other posts in Group XII which wouldGinvolve huge financial repercussion on the finance of the Boardwhich is a service-oriented institution. The High Court erred innot keeping in view the financial consequences of the directionto give parity of pay scale to the Sub Fire Officers. [Paras 22,23][342-C-E, G-H; 343-A]H

A

1.5 Inclusion of posts of Sub Fire Officers in Group XIImay not be a determinative factor to hold that the Sub Fire Officersare equal with Head Clerks, Head Clerk-cum-DivisionalAccountants, and Internal Auditors. Mere difference in pay scaledoes not always amount to discrimination; it depends upon themode of selection/recruitment, nature, quality of work and dutiesand that the status of both the posts are identical. The judgmentof the Single Judge and the impugned judgment of the DivisionBench cannot be sustained and are liable to be set aside. [Paras26, 27][343-G; 344-E-F]

B

Steel Authority of India Limited and Others v. DividendBhattacharya (2011) 11 SCC 122:[2010] 13 SCR 429;S.C. Chandra and Others v. State of Jharkhand andOthers (2007) 8 SCC 279 : [2007] 9 SCR 130 – reliedon.

C

State of Haryana and Another v. Tilak Raj and Others(2003) 6 SCC 123 : [2003] 1 Suppl. SCR 522; Unionof India and Another v. Manik Lal Banerjee (2006) 9SCC 643 : [2006] 4 Suppl. SCR 66 – referred to.

D

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 193 of2019.

F

From the Judgment and Order dated 28.09.2010 of the HighCourt of Punjab and Haryana at Chandigarh in LPA No. 713 of 2010.

Nidhesh Gupta, Sr. Adv., Pritpal Singh Nijjar, Ms. Vriti Gujral,Ms. Pallavi Singh, A. Venayagam Balan , Advs. for the Appellants.

G

Jaspal Singh M., S. L. Aneja , Advs. for the Respondents.

[2019] 1 S.C.R.

AThe Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the judgment dated 28.09.2010 passedby the High Court of Punjab and Haryana at Chandigarh dismissing theLPA No.713 of 2010 on the ground that the respondents-Sub Fire OfficersBare entitled to parity of scales of pay as the pay scale granted/revised toother classes of posts within same group viz., Group XII of the PunjabState Electricity Board.

3. Brief facts of the case are as follows:- CRespondents were inducted into the service of the Punjab StateElectricity Board (PSEB) in the year 1978 and now they are working asSub Fire Officers in the appellant-Board. The pay scale of the post ofSub Fire Officers was Rs.225-500 which was revised with effect from01.01.1978 to Rs.620-1200. Thereafter, by an order dated 21.03.1989,the pay scale for the post of Sub Fire Officers was revised to Rs.1640-D2925 with effect from 01.01.1986 along with the pay scales of othercategory of employees of the Board viz. Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors were revised.Subsequently, by an order dated 03.10.1990, the pay scale of Head Clerkswas revised from Rs.1640-2925 to Rs.2000-3500 on the recommendationEof the Pay Anomaly Committee. Likewise, by the same order dated03.10.1990, the pay scale of the Internal Auditors was revised to thescale of Rs.1800-3200; but the pay scale of the Sub Fire Officers wasnot revised on par with Head Clerks and Internal Auditors. Arecommendation letter dated 25.03.1991 was written by theSuperintendent Engineer, GNDTP, Bhatinda to the Chief Engineer,FGNDTP, Bhatinda to consider the case of the Sub Fire Officers to grantscale of pay on par with Head Clerks and Internal Auditors stating thatthere will not be much financial burden, if the pay scales of Sub FireOfficers are revised equal to other categories as only five number ofposts of Sub Fire Officers exist at GNDTP, Bhatinda and RTP, Ropar.GRelying on the said letter dated 25.03.1991 of the Superintendent Engineer,GNDTP, Bhatinda, the respondents-Sub Fire Officers submitted variousrepresentations to the appellant-Board requesting for higher pay scaleon the ground that the pay scale to the post of Sub Fire Officers in thePunjab State Government Department i.e. Fire Protection Departmentis Rs.1800-3200 and therefore, the respondents-Sub Fire OfficersHworking in the appellant-Board are also to be given same scale of pay.

4. The respondents-Sub Fire Officers filed CWP No.9294 of 1993stating that the action of the appellant-Board in granting pay scale lessthan the State Government employees is illegal, unjustified, discriminatoryand violative of Article 14 of the Constitution of India. According to therespondents, there is no difference in qualification for recruitment to thepost of Sub Fire Officers between the Board and the State Governmentand therefore, there should not be any difference in the pay scale betweenthem.

5. The appellant-Board filed counter affidavit stating that the Boardis not bound to pay the same pay scale to the respondents-Sub FireOfficers as are given by the Punjab Government to its employees holdingthe same post. It was averred that Punjab State Electricity Board is astatutory body constituted under the Electricity Supply Act governed byits own regulations. It was averred that the respondents-Sub Fire Officerscannot claim parity with other categories viz. Head Clerks, Head Clerk-cum-Divisional Accountants, Internal Auditors, etc. because all theseposts belong to different cadre than the cadre of the respondents-SubFire Officers as the nature of work, duties, responsibilities and initialqualifications for recruitment to these posts are different.

6. The learned Single Judge allowed the writ petition holding thatthe Sub Fire Officers are within Group XII that included Head Clerks,Head Clerk-cum-Divisional Accountants, Internal Auditors, etc.therefore, Sub Fire Officers cannot be denied same scales of pay whenincreased for other three classes of persons within Group XII. However,the learned Single Judge rejected the respondent’s plea claiming paritywith the employees of the State Government. Observing that therespondents are to be treated on par with other three classes withinGroup XII of the Board, the learned Single Judge allowed the writ petition.

7. The Division Bench of the High Court dismissed the appealfiled by the appellant-Board holding that there is no basis for differentlytreating the Sub Fire Officers included in Group XII. The Division Benchhas referred to the letter dated 25.03.1991 of the Superintendent Engineer,GNDTP, Bhatinda stating that the cadre of Sub Fire Officers is a smallone with limited chances of promotion to the higher posts i.e. Fire Officersand that by revising the scale of Sub Fire Officers on par with others,there will not be much financial burden on the Board. Being aggrieved,the appellant-Board is before us.

A

B

C

D

EF

G

H

A8. Mr. Nidhesh Gupta, learned Senior counsel for the appellant-Board has submitted that the respondents-Sub Fire Officers cannot claimparity with other categories viz. Head Clerks, Head Clerk-cum-DivisionalAccountants, Internal Auditors, etc. because all these posts belong todifferent cadre and the mode of recruitment and the nature of duties andresponsibilities are entirely different. It was submitted that though theBpost of Sub Fire Officers is included in Group XII, the nature of dutiesand responsibilities to each post in Group XII are different and therespondents-Sub Fire Officers cannot claim parity of pay scales withother posts in the same group. It was contended that the learned SingleJudge erred in saying that merely because the post of Sub Fire OfficersCis categorised in Group XII, they are to be treated on par with othercategories of posts in Group XII. It was urged that if the impugnedjudgment is to be sustained, it will have huge financial implications on theappellant-Board and the same is not sustainable.

9. Mr. Jaspal Singh M., learned counsel for the respondentsDsupporting the judgment of the learned Single Judge as well as of theDivision Bench of the High Court submitted that since the respondentsare included in Group XII, there cannot be any discrimination in thescales of pay. It was submitted that when the scales of pay wereincreased for other three classes of posts within Group XII, similar revisionof scale of pay ought to have been given to the respondents also and theElearned Single Judge as well as the Division Bench rightly ordered theparity in scale of pay.

10. We have carefully considered the submissions and perusedthe impugned judgment and the materials on record. The following pointsarise for consideration in this appeal:-F

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

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

11. It is fairly well settled that equation of pay scales must be leftto the Government and on the decision of the experts and the Courtshould not interfere with it. Observing that equation of pay scales ofH

posts must be left to the Government and the experts, in Steel Authorityof India Limited and Others v. Dibyendu Bhattacharya (2011) 11SCC 122, this Court held as under:- “26. In Union of Indiaand Others v.S.L. Dutta and Another(1991) 1 SCC 505, Union of Indiaand Others v. N.Y. Apte andOthers (1998) 6 SCC 741, State of U.P.and Others v. J.P.Chaurasia and Others (1989) 1 SCC 121 and Kshetriya KisanGramin Bankv.D.B. Sharma and Others (2001) 1 SCC 353,this Court held that the determination that two posts are equal ornot, is a job of the Expert Committee and the court should notinterfere with it unless the decision of the Committee is found tobe unreasonable or arbitrary or made on extraneous considerations.More so, it is an executive function to fix the service conditions,etc. and lies within the exclusive domain of the rule-makingauthority. (See also T. Venkateswaruluv.Executive Officer,Tirumala Tirupathi Devasthanams and Others (2009) 1 SCC546.)”

12. In S.C. Chandra and Others v. State of Jharkhand andOthers (2007) 8 SCC 279, observing that the grant of pay scales is apurely executive function and the court should not interfere with thesame, this Court held as under:- “33. It may be mentioned that granting pay scales is a purelyexecutive function and hence the court should not interfere withthe same. It may have a cascading effect creating all kinds ofproblems for the Government and authorities. Hence, the courtshould exercise judicial restraint and not interfere in such executivefunction vide Indian Drugs & Pharmaceuticals Ltd.v. Workmen,Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408.

………..

35. In our opinion fixing pay scales by courts by applying theprinciple of equal pay for equal work upsets the high constitutionalprinciple of separation of powers between the three organs of theState. Realising this, this Court has in recent years avoided applyingthe principle of equal pay for equal work, unless there is completeand wholesale identity between the two groups (and there toothe matter should be sent for examination by an Expert Committeeappointed by the Government instead of the court itself grantinghigher pay).”

A

B

C

D

E

F

G

H

A13. Observing that granting parity in pay scales depends upon thecomparative evaluation of job and equation of posts, this Court, in SAIL,held as under:-

“30. ……….. the law on the issue can be summarised to theeffect that parity of pay can be claimed by invoking the provisionsBof Articles 14 and 39(d) of the Constitution of India by establishingthat the eligibility, mode of selection/recruitment, nature and qualityof work and duties and effort, reliability, confidentiality, dexterity,functional need and responsibilities and status of both the postsare identical. The functions may be the same but the skills andresponsibilities may be really and substantially different. The otherCpost may not require any higher qualification, seniority or otherlike factors. Granting parity in pay scales depends upon thecomparative evaluation of job and equation of posts. The personclaiming parity, must plead necessary averments and prove thatall things are equal between the posts concerned. Such a complexDissue cannot be adjudicated by evaluating the affidavits filed bythe parties.”

14. In the light of the above principles, the case of Sub Fire Officersin PSEB requires to be examined whether they are entitled to parity inpay scales as that of the Head Clerks, Head Clerk-cum-DivisionalEAccountants, Internal Auditors, etc. PSEB is an autonomous bodyconstituted by Notification of the Punjab Government under Section 5 ofthe Electricity Supply Act, 1948 and the services under PSEB aregoverned by the Punjab State Electricity Board (Revised Pay)Regulations, 1988. The First Schedule relates to categorisation of variousgroups and revised scales of pay for categories specified thereunder.FGroup XII as it then stood in the year 1988 contains Sub Fire Officerswhich reads as under:- Group-XII : Scale: 1500-30-1560-40-2000-50-2400-60-2700-75-2925

1. Internal Auditor620-12001500-29252. Head Clerk -do- -do- 3. Head Clerk-cum-Divisional -do- -do- Accountant 4.Sub Fire Officer -do- -do- G

H

15. In the year 1988, though the post of Sub Fire Officers hasbeen included in Group XII in one category as that of Head Clerks,Head Clerk-cum-Divisional Accountants and Internal Auditors, the natureof work, duties, responsibilities and initial qualifications for recruitmentand manner of recruitment to each post are different since all theseposts belong to different cadre. The respondents cannot claim as amatter of right that they should be given the similar pay scale as aregiven to the categories of posts such as Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors.

16. For considering the equation of posts, the following factorshad been held to be determinative:-

1. The nature and duties of a post;

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

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

4. The salary of the post (vide Union of India and Another v.P.K. Roy and Others AIR 1968 SC 850).

17. After referring to P.K. Roy’s case, this Court, in SAIL, heldas under:- “25. In State of Maharashtraand Another v.ChandrakantAnant Kulkarni and Others (1981) 4 SCC 130 and Vice-Chancellor, L.N. Mithila Universityv. Dayanand Jha (1986) 3SCC 7, a similar view has been reiterated observing that equalstatus and nature and responsibilities of the duties attached to thetwo posts have to be taken into consideration for equivalence ofthe post. Similar view has been reiterated in E.P. Royappav. Stateof T.N. and Another (1974) 4 SCC 3 and Sub-InspectorRooplaland Another v.Lt. Governor Through Chief Secretary,Delhi and Others (2000) 1 SCC 644, wherein this Court followingthe earlier judgment in P.K. Roy AIR 1968 SC 850 held that thesalary of the post alone may not be a determining factor, the otherthree criterion should also be fulfilled.”

18. The duties and nature of work of Head Clerks and InternalAuditors are entirely different. Head Clerk works under XEN, Drawing A

B

C

D

E

F

G

H

Aand Disbursement Officer and there is only one Head Clerk in the DivisionOffice. Head Clerk is the Head of the establishment in the DivisionalOffice and total work of the establishment is under the control of theHead Clerk. Head Clerk also maintains the leave and other miscellaneousworks for the Sub-divisions and the Division Offices and also dischargesadministrative functions and thus, has more responsibilities. Duty of anBInternal Auditor is to audit the billing of the Revenue Department of theSub-division Office which includes billing of domestic supply to largesupply. Whereas the duty of the Sub Fire Officer is entirely differentviz., rush to the spot of emergency along with firefighting equipmentcrew, direct and supervise firefighting and rescue operations, arrangeCfor extra fire fighting equipments, if need be discharge mechanical foam,dry chemical powder, etc. and inform the fire pump house for continuousrunning of pumps and also inform Fire Officer/Sr.Xen/Fire and Safetyregarding incident. Thus, the work performed by the Sub Fire Officer isentirely different from the nature of duties performed by the Head Clerksand the Internal Auditors.D

19. The appellant-Board being an autonomous body governed byits own regulations, it was for the Board to classify its employees/postson the basis of qualifications, duties and responsibilities of the postsconcerned. If the classification has reasonable nexus with the objectivesought to be achieved, the Board would be justified in prescribing differentEpay scales. Article 14 of the Constitution of India would be applicableonly when a discrimination is made out between the persons who aresimilarly situated and not otherwise. It is the duty of an employee seekingparity of pay to prove and establish that they have been discriminated.In State of Haryana and Another v. Tilak Rajand Others (2003) 6FSCC 123, this Court held that “to claim a relief on the basis of equality,it is for the claimants to substantiate a clear-cut basis of equivalenceand a resultant hostile discrimination before becoming eligible toclaim rights on a par with the other group vis-à-vis an allegeddiscrimination.”

G20. The person claiming parity must produce material before thecourt to prove that the nature of duties and functions are similar and thatthey are entitled to parity of pay scales. After referring to number ofjudgments and observing that it is the duty of an employee seeking parityof pay to prove and establish that he had been discriminated against, thisCourt, in SAIL, held as under:-H

“22. It is the duty of an employee seeking parity of pay underArticle 39(d) of the Constitution of India to prove and establishthat he had been discriminated against, as the question of parityhas to be decided on consideration of various facts and statutoryrules, etc. The doctrine of “equal pay for equal work” as enshrinedunder Article 39(d) of the Constitution read with Article 14 thereof,cannot be applied in a vacuum. The constitutional schemepostulates equal pay for equal work for those who are equallyplaced in all respects. The court must consider the factors like thesource and mode of recruitment/appointment, the qualifications,the nature of work, the value thereof, responsibilities, reliability,experience, confidentiality, functional need, etc. In other words,the equality clause can be invoked in the matter of pay scalesonly when there is wholesome/wholesale identity between theholders of two posts. The burden of establishing right and parityin employment is only on the person claiming such right. (VideU.P. State Sugar Corpn. Ltd. and Another v. Sant Raj Singhand Others (2006) 9 SCC 82, Union of Indiaand Another v.Mahajabeen Akhtar (2008) 1 SCC 368, Union of India v.Dineshan K.K (2008) 1 SCC 586, Union of Indiaand Others v.Hiranmoy Sen and Others (2008) 1 SCC 630, OfficialLiquidator v. Dayanand and Others (2008) 10 SCC 1, U.P.SEBand Another v. Aziz Ahmad (2009) 2 SCC 606 and State ofM.P.and Others v. Ramesh Chandra Bajpai (2009) 13 SCC635)”.

21. Burden of establishing parity in pay scale and employment ison the person claiming such right. There were neither pleadings nor anymaterial produced by the respondents to prove that the nature of workperformed by the Sub Fire Officers is similar with that of the HeadClerks and the Internal Auditors to claim parity of pay scale. As pointedout earlier, the burden lies upon the party who claims parity of pay scaleto prove similarity in duties and responsibilities. In the writ petition,respondents have only claimed parity of pay scale with those of theemployees working under the Punjab Government which was notaccepted by the learned Single Judge. Determination of parity or disparityin duties and responsibilities is a complex issue and the same should beleft to the expert body. When the expert body considered revision of payfor various posts, it did not revise the pay scale of Sub Fire Officers.

ABCDE

F

G

H

AWhen the expert body has taken such a view, it is not for the courts tosubstitute its views and interfere with the same and take a differentview.

22. As pointed out earlier, though the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors were earlier placedBin the same group viz. Group XII; but educational qualifications requisitefor these posts and mode of recruitment are different. Likewise, there isno similarity in the work performed by the employees on those posts.Only in cases of complete similarity in the nature of work, duties,responsibilities and promotional channels, parity of pay scale can beclaimed. Merely on the ground that Sub Fire Officers are categorised inCGroup XII along with Head Clerks, Head Clerk-cum-DivisionalAccountants and Internal Auditors cannot be a ground for seeking parityof pay scale. As submitted by the learned Senior counsel for the appellant-Board, the nature of work, duties, responsibilities and initial qualificationfor recruitment of each post are entirely different as all these postsDbelong to different cadre.

23. That apart, though in the year 1988 there were only four postsin Group XII, number of several posts have been subsequently included.Vide Finance Circular No.44/89 dated 15.06.1989, seven more postswere added in Group XII. Thereafter, vide Finance Circular No.45/89Edated 26.06.1989, there was a further increase of seven posts in GroupXII. The fourteen posts which were added to Group XII are:- PunjabiTeacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security Inspector, Modeller Divisional HeadDraftsman, Prosecuting Inspector (now Law Officer), Law OfficerGrade II, Medical Assistant, Librarian and Fire Officer, etc. At the timeFof the issuance of order dated 03.10.1990 revising the scale of pay ofHead Clerks, Head Clerk-cum-Divisional Accountants, Internal Auditorsetc., there were various posts included in Group XII. For all these posts,source and mode of recruitment, qualifications and nature of work areentirely different. If the contention of the Sub Fire Officers for parity ofGpay scale with pay scale of Head Clerks, Head Clerk-cum-DivisionalAccountants and Internal Auditors is accepted, such parity of scale ofpay may have to be extended to all other posts in Group XII whichwould involve huge financial repercussion on the finance of the Boardwhich is a service-oriented institution. The High Court, in our view, erredin not keeping in view the financial consequences of the direction to giveH

parity of pay scale to the Sub Fire Officers. As held in Union of Indiaand Another v. Manik Lal Banerjee (2006) 9 SCC 643, “it is now awell settled principle of law that financial implication is a relevantfactor for accepting the revision of pay.”

24. Before the learned Single Judge, the respondents relied uponthe letter written by the Superintendent Engineer, GNDTP, Bhatinda tothe Chief Engineer, GNDTP, Bhatinda dated 25.03.1991 to consider therequest of Sub Fire Officers for parity of pay scale with pay scale ofHead Clerks, Head Clerk-cum-Divisional Accountants and InternalAuditors. As rightly contended by the appellant-Board, the letter waswritten only on the ground that there would not be much financial burden.But the said letter does not indicate any parity of nature of work,responsibilities, functional need, etc. The said letter of the SuperintendentEngineer, GNDTP, Bhatinda also did not take note of other variouscategories of posts included in Group XII. Referring to the said letterdated 25.03.1991 of the Superintendent Engineer, GNDTP, Bhatinda,the learned Single Judge observed that the plea of the respondents forparity of pay scale was supported by the Superintendent Engineer. Thelearned Single Judge did not keep in view the well factors like source,mode of recruitment, nature of work, etc. for the post of Sub Fire Officersand the Head Clerks, Head Clerk-cum-Divisional Accountants andInternal Auditors.

25. In the writ petition, the respondents have taken the plea thatthey are entitled to the scale of pay on par with the employees of thePunjab Government in parity of the wages. Nature of work performedby those in the service of Punjab Government are different from thosein service of the Board, the learned Single Judge rightly refused to acceptthe plea of the respondents claiming parity with the employees of theState Government.

26. The learned Single Judge, however, proceeded under theerroneous footing that merely because Sub Fire Officers werecategorised in Group XII, they were entitled parity of scale of pay withpay scale of Head Clerks, Head Clerk-cum-Divisional Accountants andInternal Auditors. Inclusion of posts of Sub Fire Officers in Group XIImay not be a determinative factor to hold that the Sub Fire Officers areequal with Head Clerks, Head Clerk-cum-Divisional Accountants, andInternal Auditors. Mere difference in pay scale does not always amountto discrimination; it depends upon the mode of selection/recruitment, A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Anature, quality of work and duties and that the status of both the postsare identical. Observing that it is not always impermissible to providetwo different pay scales in the same cadre, this Court, in SAIL, held asunder:- “29. It is a settled legal proposition that it is not alwaysBimpermissible to provide two different pay scales in the samecadre on the basis of selection based on merit with due regard toexperience and seniority. (Vide State of U.P. and Others v. J.P.Chaurasia and Others (1989) 1 SCC 121 and Mewa RamKanojia v. All India Institute of Medical Sciences and Others(1989) 2 SCC 235.) “Non-uniformities would not in all eventsCviolate Article 14.” Thus, a mere difference does not alwaysamount to discrimination. (Vide Madhu Kishwarand Others v.State of Bihar and Others (1996) 5 SCC 125, Associate BanksOfficers’ Assn. v. SBI and Others (1998) 1 SCC 428 and OfficialLiquidator v. Dayanand and Others (2008) 10 SCC 1)”.

D27. Respondents have not produced any material to show thatthere is any similarity/identity between the posts of Sub Fire Officersand the Head Clerks, Head Clerk-cum-Divisional Accountants andInternal Auditors in terms of the nature of duties, responsibilities,qualifications and mode of recruitment etc. to apply the principle of parityEof pay scale. The learned Single Judge did not keep in view that thenature of duties and responsibilities performed by the Sub Fire Officersare different and parity cannot be claimed merely on the ground thatthey are categorised in one group. The judgment of the learned SingleJudge and the impugned judgment of the Division Bench cannot besustained and are liable to be set aside.F

28. In the result, the impugned judgment dated 28.09.2010 passedby the High Court of Punjab and Haryana at Chandigarh in LPA No.713of 2010 is set aside and this appeal is allowed. Pursuant to the interimorder of the Supreme Court, if any amount over and above the salarypayable has been paid, the same may not be recovered from theGrespondents and other Sub Fire Officers.

Divya Pandey

H