PETITIONER:
PRABHAT KIRAN MAITHANI & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT03/02/1977
BENCH:
BEG, M. HAMEEDULLAH (CJ)
KAILASAM, P.S.
CITATION:
1977 AIR 1553 1977 SCR (2) 911
1977 SCC (2) 365
ACT
Pay Scales and revised pay scales of computers shown as
identical in the Second Pay Commission Report--Right to be
equated as Research Assistants Grade 11 both in status and
in pay is entirely within the sphere of the function of the
Pay Commission--Effect of the Report of the Third Pay Com-
mission.
Constitution of India, 1950--Article 32 can be resorted
to only for the enforcement of Fundamental Rights--Equation
of posts is not a duty which the court under Art. 32 or the
High Court under Art. 226 was competent to carry out.
HEADNOTE
In the 1959 Second Pay Commission Report, the pay scales
and the revised pay scales of the Computers were shown as
identical with that of the Research Assistants Grade II,
even though the ’two posts were shown as separate classes.
The Third Pay Commission Report, however, showed that the
Computers not only belonged to a separate class of their own
but received less pay than Research Assistants’ Grade II.
The petitioners assailed this view under Art. 32 of the
Constitution as violative of Articles 14 and 16 of the
Constitution on the ground that they had a Fundamental Right
to be equated both in status as well as in Day to that of
Research Assistants, Grade II.
Dismissing the petition the Court.
HELD: (1) Equation of posts and equation of pay are
matters entirely within the sphere of the function of the
Pay Commission. These are questions entirely unfit for
determination upon a petition for a writ for the enforcement
of Fundamental Rights. It requires, firstly, formula-
tion of correct criteria for each classification. and,
secondly. the application of these criteria to facts relat-
ing to the functions and the qualifications for each class.
The Pay Commission had done this in the instant case elabo-
rately,. [912 F, 913 B-C]
(2) The Court, under Art. 32. neither has wider powers
nor can do it with greater facility than a High Court can-
not, when exercising its writ issuing jurisdiction. This
Court had already laid down that equation of posts is not a
duty which the High Court was competent to carry out in
proceedings under Art. 226. [913 D]
Union of India v. G.R. Prabhavalkar & Co. [1973] (3) SCR
714, referred
(3) The question, whether there is or there is not
enough material on record in a particular case to establish
the basis of a particular discrimination is one of fact for
the determination of which no hard and fast rules can be
laid down. A discrimination which involves the invocation
of Art. 14 is not necessarily covered by Art. 16. In the
instant case, even the material relied upon by the petition-
ers shows the Computers and Research Assistants Grade II are
classified separately, and, therefore, the validity of that
classification cannot be displaced by the kind of evidence
relied on. Until that classification is shown to be unjus-
tified, no question of violating Article 16 can arise.
[913 G-H, 914 A]
Purshottam Lal and Ors. v. Union of India & Anr. [1973]
(1) SCC 651 held inapplicable.
JUDGMENT
ORIGINAL JURISDICTION: Writ Petition No. 43 of 1976.
S.C. Agarwal for the Petitioners.
912
L.N. Sinha, Sol Genl. and B. Datta for Respondents.
The Judgment of the Court was delivered by
BEG, C.J.--The petitioners before us are employees of
the Forest Research Institute and Colleges Dehra Dun in the
posts designated as Computers. Their grievance is that
they should be treated as Research Assistants Grade II and
given the same scale of pay and other conditions of service
as are applicable to Research Assistants Grade II. The
respondents, Union of India and the President of the Forest
Research Institute deny that the petitioners are entitled to
be treated as Research Assistants Grade II. The petitioners
rely upon certain alleged admissions on behalf of the oppo-
site parties, on certain classifications of Computers in the
past, prior to the recommendations the Third Pay Commission
1973 as well as on the last mentioned report of the Central
Pay Commission. Furthermore, learned counsel has invited
our attention to the case of Purshottam Lal and Ors. Vs.
Union of India and another [1973 (1) S.C.C. 651] whereupon
a Writ Petition by Computers, they were shown as having been
given identical scales of pay with the Research Assistants
Grade II. This decision however, does not deal with any
controversy as to the correct classification of computers in
comparison with Research Assistants Grade II. All we need
say is that this case deals with the position under the
Report of 1959 of’ the Second Pay Commission which has no
bearing on the position which follows from the Report of the
Third Pay Commission of 1973. Moreover, it is evident that
even at that time Research Assistants Grade II and Computer
were shown as separate classes even though their pay scales
and the revised pay scales were shown as identical. Thus
the claim of the petitioners is that this Court should not
only include the Computers amongst Research Assistants
Grade II, which is not borne out even from the Report of
the Second Pay Commission, but go further and equate their
pays, so that. even though they belong to different classes,
their scales of pay may be identical. We are afraid this is
a matter which lay entirely within the sphere of the func-
tions of the Pay Commission. This Court cannot satisfactori-
ly decide such disputed questions on the salender material
on which the learned counsel for the petitioner relies in
order to displace what appears to us to be, prima facie,
the effect of the Report of the Third Pay Commission of
1973. This report shows that Computers not only belong to
a separate class of their own but received less pay than
Research Assistants of Grade II.
Learned Counsel for the petitioner’s tried to get out of
the report of the Third Pay Commission contained in Chapter
XVII relating to the Economists and Statisticians, wherein
Computers are mentioned and dealt with in paragraphs 32 to
34, by asserting that their case should be covered by either
Chapter XV, which deals with "Scientific Services" (specifi-
cally mentioned therein) or Chapter XXI, concerned with
Ministry of Agriculture, where the Forest Research Institute
and Colleges are mentioned in paragraphs 58 onwards. It
seems to us to be erroneous to attempt to place Computers in
Chapter XV, which deals with specified "Scientific Services"
where Computers are not mentioned, or in Chapter XXI, which
also does not mention Corn-
913
puters at all. Learned Counsel for the petitioners tried
to take advantage of the fact that paragraphs dealing with
the Forest Research Institute in Chapter XXI do not mention
Computers. It does not follow from this that Computers
necessarily belong to the class into which the petitioners
want to get in without showing what the criteria and func-
tions of persons entitled to be treated as Research Assist-
ants of Grade II are as compared with the Computers who,
prima facie belong to another class of workers dealing with
statistics even though they may be in some way assisting in
research or three may be some common functions. Indeed,
everyone working in a research institute could, in some way,
be said to be assisting in research. We think that these
are questions entirely unfit for determination upon a peti-
tion for a Writ for the enforcement of fundamental rights.
It requires: firstly, formulation of correct criteria for
each classification; and, secondly, the application of these
criteria to facts relating to the functions and qualifica-
tions for each class. The Pay Commission had done this
elaborately.
The learned Solicitor General has invited our attention
to the case of Union of India v. G.R. Prabhavalkar & Ors.
reported in 1973 (3) S.C.R. 714, where this Court held that
equation of posts is not a duty which the High Court was
competent to carry out in proceedings under Article 226. We
do not think that we have wider powers or that we can do
with greater facility what a High Court cannot when exercis-
ing its writ issuing jurisdiction.
The learned counsel for the petitioners has tried to
take us at some length into the material on which he as-
sails the view taken by the opposite parties. We are unable
to agree that, on the material placed before us, we can
accept the petitioners’ interpretation of facts to which our
attention was drawn. We are unable to consider other mate-
rial also to which our attention was attempted to be drawn
because, on the basis of the materials shown to us, we are
satisfied that such matters are not fit for determination by
us on the kind of material sought to be placed before us.
Finally, learned counsel for the petitioners pleaded
that we may permit him to raise this matter before an Admin-
istrative or Service Tribunal if and when one is constitut-
ed. It is not necessary for us to give him any permission
to do that. We may however observe that the petitioners are
at liberty to pursue other remedies, including those which
may be available to them if any such Tribunal is set up in
future. We want to make it clear that the question whether
there is or there is not enough material on record in a
particular case to establish the basis of a particular
discrimination is one of fact for the determination of which
no hard and fast rules can, be laid down. Moreover, a dis-
crimination, which involves the invocation of Article 14, is
not necessary covered by Article 16. We do not propose to
discuss here the differences between Articles 14 and 16,
because we think that, even the material relied upon on
behalf of the petitioners before us shows that Computers and
Research Assistants Grade II are classified separately.
The validity of that classification cannot,
914
we think, be displaced by the kind of evidence relied upon
on behalf of the petitioners. And, until that classifica-
tion is shown to be unjustified, no question of violating
Article 16 can arise. We, therefore, leave the petitioners
to other means of redress if they still feel aggrieved.
The result is that we dismiss the Writ Petition, but
make no order as to costs.
S.R. Petition dis-
missed.
915