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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

 CIVIL     APPEAL     NO.3580     OF     2009   

Hukum Chand Gupta                               ...Appellant  

VERSUS

Director General, ICAR  & ORS.                 ...Respondent

J     U     D     G     M     E     N     T   

SURINDER     SINGH     NIJJAR,J.   

1. On 25th September, 2012, we passed the following  

order:

“Having heard the appellant-in-person and the  counsel for the respondent, we find no merit in  the appeal and the same is hereby dismissed.  The detailed reasons with conclusions shall  follow.”

2.   Here are the reasons.

3.  This appeal is directed against the judgment of the  

Division Bench of the High Court of Punjab and  

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Haryana at Chandigarh in Civil Writ Petition No.9595-

CAT of 2004 decided on 8th August, 2008.  

4. The appellant was initially appointed as a Laboratory  

Assistant in Group D on 29th December, 1961 in the  

National Dairy Research Institute (hereinafter referred  

to as ‘NDRI’).    On 13th January, 1966, he was  

promoted as a Lower Division Clerk (Junior Clerk) after  

qualifying limited departmental competitive  

examination. He was further promoted  on 10th May,  

1973 as a Senior Clerk, again after qualifying limited  

departmental competitive examination. At that stage,  

his pay scale was Rs.1200-2040/-. Subsequently, on  

15th June, 1988, he was promoted to the post of  

Superintendent in the pay scale of Rs.1640-2900/- after  

passing the departmental examination. On 17th March,  

1994, he was promoted as Assistant Administrative  

Officer on the basis of seniority-cum-fitness. The  

respondent revised the pay scale of Assistants on 17th  

June, 1995 from Rs.1400-2600 to Rs.1640-2900/-  

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w.e.f. 1st January, 1986. However, the pay scale of  

Superintendent was not revised.  

5. At that stage, the appellant submitted a representation  

on 24th October, 1995 requesting that his pay scale  

may be revised on the ground that in Headquarters of  

Indian Council of Agricultural Research (ICAR), the  

post of Superintendent is a promotional post from that  

of Assistant which carries the pay scale of Rs.1640-

2900/-. The representation not having been decided,  

the appellant filed OA No.567-HR-96 before the  

Chandigarh Bench of Central Administrative Tribunal  

(hereinafter referred to as ‘the Tribunal’). By order  

dated 20th May, 1997 the Tribunal disposed of OA with  

the following observations :-

“In this application, the agitation is for revision of  pay scale of the applicant who is Superintendent  in the scale of Rs.1640-2900/- to that of Rs.2000- 3500/- on the ground that the duties and  responsibilities of Superintendent are much higher  than the Assistants working at Headquarters office  of ICAR and he should be given the higher pay  scale. As per the recent judgment of the Hon’ble  Supreme Court in the case of UOI and Anr. vs.  

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P.V.Hariharan and Anr. O.A.No.7127 of 1993  arising out of OA 391/91, has precluded the  Tribunals from adjudicating the matters of parity  of pay or pay scales in the Government  Department unless some discrimination is brought  to the notice of the Court. This is a matter  regarding parity of pay scales between two sets of  posts, therefore, it is squarely covered by the  directions of Hon’ble Supreme Court. In view  thereof, this matter cannot be adjudicated by this  Tribunal.  

2. However, it was also brought to our notice that  the matter is engaging the attention of the  authority concerned and the representation filed  by the applicant on 24.10.1995 (A-3) is under  active consideration.

3. In view thereof, the OA is disposed of with a  direction that respondents shall expedite the  decision in the matter. OA disposed of  accordingly.”                  

A perusal of the aforesaid shows that the Tribunal  

declined to entertain the claim of the appellant by relying  

upon the judgment rendered by this Court in Union     of    

India Vs. P.V.Hariharan     &     Anr.  1   The Tribunal, however,  

directed that the respondent shall expedite the decision  

on the representation submitted by the appellant.  

1 (1997) 3 SCC 568

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Subsequently, NDRI sent a copy of the memorandum to  

the appellant on 2nd April, 1998 which reads as under:   

MEMORANDUM

“With reference to the Court Case filed by  Sh.Hukum Chand Gupta Asstt. Administrative  Officer, NDRI, Karnal, under OA No.567/HR/96 in  the Central Administrative Tribunal, Chandigarh,  regarding  upgradation of the post of  Superintendent in the higher scale of that the  proposals based upon the recommendations of Dr.  Raman Committee involving upgradation of posts  including the Superintendent/Superintendent (A  &A) and Sr. Stenographer in the existing pay scale  of RS.1640-2900 (revised to Rs.5500-175-9000) to  the next higher grades, the same have not yet been  concurred to by the Ministry of Finance. Deptt. of  Expenditure. Thus the decision in the matter is  pending.  

This issue with reference to the ICAR letter  No.9-16/96 Law dated the 11-March-1998.

Sd/-

(J.K.Kewalramani)

 Senior Administrative Officer Admn.)”

6. On 4th August, 2000, the appellant was further  

informed that ICAR, on the basis of the  

recommendation of the Cadre Review Committee, had  

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directed for upgradation of seven posts of  

Superintendents to the post of AAO, by letter dated  

17th December, 1998. Therefore, no further decision  

was required to be taken by the respondent on the  

representation of the appellant.  

7. It appears that on 12th December, 2000, the Screening  

Committee of respondent institute recommended the  

case of Shri J.I.P. Madan for financial upgradation in  

the scale of Rs.8000-13500/-. The aforesaid decision  

was taken on the basis of the instructions of the ICAR  

by which the post of Superintendent was merged with  

the post of Assistant as the post of Superintendent  

was treated as ‘dying cadre’. In the meantime, the  

appellant reached the age of superannuation on 31st  

July, 2001 and duly retired from service. On 17th April,  

2002, Shri J.I.P. Madan was granted second financial  

upgradation w.e.f. 8th February, 2001 in the pay scale  

of Rs.8000-13500. At this stage, the appellant again  

moved the Tribunal through OA No.299/HR/2003.  

The appellant claimed that Shri J.I.P. Madan being  

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junior to him cannot be put in a higher pay scale. The  

OA was dismissed on 2nd December, 2003.  

8. By a detailed order, the Tribunal rejected both the  

claims. It was observed that the post at Headquarters  

cannot be compared with the post at Institutional level  

as both are governed by different sets of Service Rules.  

The second prayer with regard to the higher pay scale  

given to Shri J.I.P. Madan was rejected on the ground  

that he had been given the benefit of second  

upgradation in pay since he had earned only one  

promotion throughout his professional career.

9. Aggrieved by the aforesaid, the appellant filed a writ  

petition C.W.P. No. 9595 CAT of 2004 before the High  

Court. The writ petition has also been dismissed by  

judgment dated 8th August, 2008.  This judgment is  

impugned in the present appeal.   

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10. We have heard the appellant, in person, and Mrs.  

Sunita Rao, on behalf of the respondents.  

11. We see no reason to differ with the conclusion  

reached by the High Court.  It is a matter of record  

that the claim of the appellant had been negated way  

back in 1997, when the Tribunal rejected the claim.  

The aforesaid order of the Tribunal was not challenged  

by the appellant. However, leaving aside the question  

of laches, we are of the opinion that the appellant has  

failed to establish that the action of the respondents is  

either discriminatory or beyond the purview of the  

rules.

12. According to the appellant, the decisions rendered  

by the Tribunal as well as the High Court are based on  

a misconception.  According to him, there can be no  

distinction in the pay scales of the posts in  

Headquarters on one hand and at institutional level on  

the other. He claims that the persons holding identical  

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posts performing identical and similar duties under  

the same employer cannot be treated differently in the  

matter of pay and allowances, depending on whether  

the employees are posted at Headquarters or at the  

Institution level. This, according to the appellant,  

violates Article 14, 16 and 39D of the Constitution of  

India.

13. Mrs. Sunita Rao, learned counsel appearing for the  

respondent has submitted that Shri J.I.P. Madan was  

appointed as a Lab Assistant w.e.f. 3rd May, 1976 at  

NDRI. He was directly recruited thereafter  

on 9th February, 1977 as an Assistant in the pay scale  

of Rs.425-700. This was not a case of promotion from  

the post of Lab Assistant, a technical post to the post  

of Assistant which is in the general cadre. She,  

however, accepts that Shri Madan was further  

promoted as Superintendent on 24th August, 1990 in  

the pay scale of Rs.1640-2900 revised to Rs.5500-

9000 with effect      from 1st January, 1996. He was  

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further promoted to the post of AAO on 1st November,  

1996 in the pay scale of Rs.6500-10500. She, however,  

points out that there was a merger of the post of  

Superintendent and Assistant in 1998. Therefore, the  

post of Superintendent was declared a dying cadre.  

Assured Career Progression Scheme (hereinafter  

referred to as ‘ACP Scheme’) was introduced in 1999.  

Some institutes had raised a point of doubt as to  

whether the promotion of Assistant to Superintendent  

may be ignored in terms of DOPT’s clarification vide  

O.M. dated 10th February, 2000. Reference was,  

therefore, made to the DOPT for the necessary  

clarification. The clarification given by the DOPT was  

communicated to the respondent institute by letter  

dated 1st March, 2002.  Learned counsel brought to  

our notice the relevant extract of the aforesaid letter,  

which is as under : -

“In the given facts, the post of Assistant and  Superintendent have been brought at par as  incumbents of both are eligible for promotion  directly to the grade of AAO and Assistant is  no longer the feeder grades for  

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Superintendent. Since, financial upgradation  under AGP schemes are to be allowed as per  the hierarchy available as on 9.8.1999, the  promotion earned to the grade of  Superintendent prior to 9.8.99 may have to be  ignored in terms of clarification to point of  doubt No.1 in O.M. dated 10.2.2002.”     

14.According to the learned counsel, the promotion of  

Shri Madan from the post of Assistant to the post of  

Superintendent had to be ignored on the basis of the  

above clarification. Consequently, he had been given  

the second upgradation under the ACP on 26th March,  

2000.  

15.In our opinion, the explanation given by Mrs. Sunita  

Rao does not leave any room for doubt that the claim  

made by the appellant is wholly misconceived. There is  

no comparison between the appellant and Shri J.I.P.  

Madan. The appellant had duly earned promotion in  

his cadre from the lowest rank to the higher rank.  

Having joined in Group D, he retired on the post of  

AAO. On the other hand, Shri J.I.P. Madan had been  

working in the same pay scale till his promotion on the  

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post of AAO. Therefore, he was held entitled to the  

second upgradation after 24 years of service.  He had  

joined as an Assistant by Direct Recruitment and  

promoted on 24th August 1990 as a Superintendent.  

After the merger of the post of Assistant with the  

Superintendent, the earlier promotion of Shri Madan  

was nullified, as Assistant was no longer a feeder post  

for the promotion on the post of Superintendent. Thus,  

a financial upgradation, in view of ACP Scheme, was  

granted to him since he had no opportunity for the  

second promotion.  

16.The Assured Career Progression Scheme for the  

civilian employees was introduced on the  

recommendations of the Vth Central Pay Commission.  

It was introduced with a view to provide a ‘Safety Net’  

to deal with problems of genuine stagnation and  

hardship faced by the employees due to lack of  

adequate promotional avenues. Under this scheme, it  

was decided to grant two financial upgradations on  

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completion          of 12 years and 24 years of regular  

service respectively. It was further provided that  

isolated posts in Group A, B, C and D categories which  

have no promotional avenues shall also qualify for  

similar benefits. Grant of financial upgradations under  

the ACP Scheme was, however, made subject to the  

conditions mentioned in Annexure-I of   the Office  

Memorandum No.35034/1/97-Estt(D)             dated  

9th August, 1999. The conditions in Annexure-I  

indicate that ACP Scheme envisages only a placement  

in the higher pay-scale/grant of financial benefits  

(through financial upgradation).  This is given to the  

Government servant concerned, on personal basis  

only.  It neither amounts to functional/regular  

promotion nor requires creation of new posts for the  

purpose. The aforesaid clarification makes it  

abundantly clear that the financial upgradation was  

granted to Shri Madan strictly inconformity with the  

aforesaid scheme. Therefore, the objections raised by  

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the appellant were without any basis and wholly  

misconceived.  

17.We may notice here that the provisions contained in  

ACP Scheme are inconsonance with the observations  

made by this Court in Council     of     Scientific     and    

Industrial     Research     &     Anr.   Vs. K.G.S.     Bhatt     &     Anr.  2  

in the following words:  

“It is often said and indeed, adroitly, an  organisation public or private does not “hire a  hand”  but engages or employs a whole man.  The person is recruited by an organisation not  just for a job, but for a whole career. One  must, therefore, be given an opportunity to  advance. This is the oldest and most important  feature of the free enterprise system. The  opportunity for advancement is a requirement  for progress of any organisation. It is an  incentive for personnel development as well.  (See Principles of Personnel Management, Flipo  Edwin B., 4th Edn., p. 246) Every  management must provide realistic  opportunities for promising employees to move  upward. “The organisation that fails to develop  a satisfactory procedure for promotion is  bound to pay a severe penalty in terms of  administrative costs, misallocation of  

2 (1989) 4 SCC 635

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personnel, low morale, and ineffectual  performance, among both non-managerial  employees and their supervisors.”  (See  Personnel Management, Dr. Udai Pareek, p.  277) There cannot be any modern  management much less any career planning,  manpower development, management  development etc. which is not related to a  

system of promotions. (See Management of  Personnel in Indian Enterprises, Prof. N.N.  Chatterjee, Ch. 12, p. 128)”

18.In the case of State     of     Tripura     &     Ors.   Vs. K.K.     Roy  ,3  

this Court again observed that “it is not disputed that  

the other States in India/Union of India having regard  

to the recommendations made in this behalf by the  

Pay Commission introduced the Scheme of Assured  

Career Promotion in terms whereof the incumbent of a  

post if not promoted within a period of 12 years is  

granted one higher scale of pay and another upon  

completion of 24 years if in the meanwhile he had not  

been promoted despite existence of promotional  

avenues.”   

3  (2004) 9 SCC 65

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19. As noticed earlier, the ACP Scheme was introduced  

in the ICAR by making the necessary provision in the  

statutory Service Rules. Admittedly, Shri J.I.P. Madan  

has been given the benefit under the ACP Scheme.  

Therefore, the decision taken by the respondent was  

within the purview of the Service Rules and can not be  

said to be arbitrary.  That being so, the claim made by  

the appellant is clearly misconceived.

20. We are also not inclined to accept the submission of  

the appellant that there can be no distinction in the  

pay scales between the employees working at  

Headquarters and the employees working at the  

institutional level. It is a matter of record that the  

employees working at Headquarters are governed by a  

completely different set of rules. Even the hierarchy of  

the posts and the channels of promotion are different.  

Also, merely because any two posts at the  

Headquarters and the institutional level have the same  

nomenclature, would not necessarily require that the  

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pay scales on the two posts should also be the same.  

In our opinion, the prescription of two different pay  

scales would not violate the principle of equal pay for  

equal work. Such action would not be arbitrary or  

violate Articles 14, 16 and 39D of the Constitution of  

India. It is for the employer to categorize the posts and  

to prescribe the duties of each post. There can not be  

any straitjacket formula for holding that two posts  

having the same nomenclature would have to be given  

the same pay scale.  Prescription of pay scales on  

particular posts is a very complex exercise.  It requires  

assessment of the nature and quality of the duties  

performed and the responsibilities shouldered by the  

incumbents on different posts.  Even though, the two  

posts may be referred to by the same name, it would  

not lead to the necessary inference that the posts are  

identical in every manner.  These are matters to be  

assessed by expert bodies like the employer or the Pay  

Commission.  Neither the Central Administrative  

Tribunal nor a Writ Court would normally venture to  

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substitute its own opinion for the opinions rendered by  

the experts.  The Tribunal or the Writ Court would  

lack the necessary expertise undertake the complex  

exercise of equation of posts or the pay scales.

20-A.   In expressing the aforesaid opinion, we are  

fortified by the observations made by this Court in State  

of     Punjab   Vs. Surjit     Singh  .4  In this case, upon review of  

a large number of judicial precedents relating to the  

principle of ‘equal pay for equal work’, this Court  

observed as follows:

“19…Undoubtedly, the doctrine of ‘equal pay  for equal work’ is not an abstract doctrine and  is capable of being enforced in a court of law.  But equal pay must be for equal work of equal  value. The principle of ‘equal pay for equal  work’  has no mechanical application in every  case. Article 14 permits reasonable  classification based on qualities or  characteristics of persons recruited and  grouped together, as against those who were  left out. Of course, the qualities or  characteristics must have a reasonable  relation to the object sought to be achieved. In  service matters, merit or experience can be a  proper basis for classification for the purposes  4 (2009) 9 SCC 514  

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of pay in order to promote efficiency in  administration. A higher pay scale to avoid  stagnation or resultant frustration for lack of  promotional avenues is also an acceptable  reason for pay differentiation…..A mere  nomenclature designating a person as say a  carpenter or a craftsman is not enough to come  to the conclusion that he is doing the same  work as another carpenter or craftsman in  regular service. The quality of work which is  produced may be different and even the nature  of work assigned may be different. It is not just  a comparison of physical activity. The  application of the principle of ‘equal pay for  equal work’  requires consideration of various  dimensions of a given job. The accuracy  required and the dexterity that the job may  entail may differ from job to job. It cannot be  judged by the mere volume of work. There may  be qualitative difference as regards reliability  and responsibility. Functions may be the same  but the responsibilities make a difference.  Thus normally the applicability of this  principle must be left to be evaluated and  determined by an expert body. These are not  matters where a writ court can lightly  interfere. Normally a party claiming equal pay  for equal work should be required to raise a  dispute in this regard. In any event, the party  who claims equal pay for equal work has to  make necessary averments and prove that all  things are equal. Thus, before any direction  can be issued by a court, the court must first  see that there are necessary averments and  there is a proof.”

                        (Emphasis  supplied)  

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21.In our opinion, the aforesaid observations would be a  

complete answer to all the submissions made by the  

appellant.

22. For the aforesaid reasons, we see no merit in this  

appeal and the same is dismissed.                           

.………………….….….J.  [Surinder Singh Nijjar]

………………………….J. [H.L.Gokhale]

New Delhi; September 25, 2012.

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