Jammu & Kashmir High Court - Srinagar Bench
Junaid Amin Wani And Others vs State Of J&K; And Others on 16 July, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
SWP no.1265/2016 MP no.01/2016 Date of order: 16.07.2018 Junaid Amin Wani and others v.
State of J&K and others Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge Appearing Counsel:
For Petitioner(s): Mr M. Y. Bhat, Advocate For Respondent(s): Mr R. A. Khan, AAG Whether approved for reporting? Yes
1. Board of Directors of the J&K State Power Development Corporation Limited, a Government of J&K Enterprise, in its 65th meeting, decided to advertise 75 posts of the Finance Assistants. Notification no.JKSPDCL/ADM/4342 dated 25th August 2012 was issued, inviting the applications from the permanent residents of Jammu and Kashmir State for contractual appointment, amongst others, to 75 posts of the Finance Assistants. It was made clear in the aforesaid advertisement notice that the contractual appointment would be for a period of two years, after which the appointees would be considered for regularisation subject to their satisfactory performance in accordance with the policy being formulated in this behalf by the respondent corporation. The qualification prescribed SWP no.1265/2016 Page 1 of 133 for the post of Finance Assistant was MBA (Finance) / MFC / M.Sc.(Finance)/M. Com having passed from a Government recognised Institute with at least 60% marks. The selection process, set in motion, culminated in the appointment of the Finance Assistants, including the present petitioners.
For regularising the contractual appointment on completion of two years, a committee was constituted vide Order no.PDC/42 of 2016 dated 20th February 2016 to examine the various aspects of the process of regularisation of the Finance Assistants. The Committee recommended the regularisation of 42 Finance Assistants. This was followed by issuance of Order no.PDC/CJ/77 of 2016 dated 26th March 2016, regularising as many as 42 Finance Assistants in the pay scale of 5200-20200 with Grade Pay of 2400.
2. The present petitioners, 41 in number, are aggrieved of their placement in the Grade Pay of Rs.2400/- as according to them they are entitled to be given the Grade Pay of Rs.4800/- as is being granted to the similarly situated employees of the respondent corporation and the State Government and other corporations / undertakings. The petitioners seek:
a) Writ of certiorari, quashing Order no.PDC/CJ/77 of 2016 dated 26th March 2016 to the extent of placement of the petitioners in the Pay Scale of 5200-20200 with Grade Pay of Rs.2400.00;
b) Writ of mandamus, commanding the respondents to place the petitioners in the Pay Scale of 9300-34800 with Grade Pay of Rs.4800/- as is being granted to other similarly situated employees of the respondent SWP no.1265/2016 Page 2 of 133 corporation and State Government and other corporations/undertakings;
c) Writ of mandamus, commanding the respondents to calculate the release the arrears of the salary and emoluments ta the rate of 9300-34800 with Grade Pay of Rs.4800/- and also clear arrears of emoluments accordingly for the first two years of contractual service;
d) Writ of mandamus, commanding the respondents to implement the Manpower Policy issued vide Order no.169-JKSPDC of 2013 dated 14th November 2013 in letter and spirit and designate the petitioners as Managers and grant them all consequential benefits retrospectively.
3. Reply has been filed by respondent no.2. He insists that the respondent corporation is a government owned corporation. The respondent corporation has as on date no recruitment rules and the bylaws are operational in the corporation. The posts are advertised purely in the interest of the respondent corporation so as to ensure that the work does not suffer. The respondent no.2 admits that the petitioners were regularised with the specific scale of pay, which was/is applicable as per the decision of the respondent corporation, but at the same time the petitioners cannot be allowed to approbate and reprobate inasmuch as on the one hand they have accepted their regularisation and on the other hand they challenge the same to the extent of their placement in the pay scale mentioned in the regularisation order. It is contended that the appointment of the petitioners and their regularisation has been made as per the decision of the management of the respondent corporation and that the respondent corporation is a SWP no.1265/2016 Page 3 of 133 separate corporation with the management and accordingly the grade was finalised and posts advertised and on the response the posts were filled up on the basis of option of the candidates including the petitioners. In fact, the petitioners are legally stopped to seek the relief as prayed for by them. It is also averred that the petitioners are trying to carve out a case according to their own whim and caprice. The revised recruitment rules issued by the Indian Council of Agricultural Research as alleged by the petitioners, are not applicable to the respondent corporation. The respondent corporation has issued the advertisement with application of mind to the facts and circumstances of the case and accordingly effected formal appointment of meritorious candidates including the petitioners in the grade mentioned in the order, which too has been accepted and acted upon by the petitioners, who now want to take U-turn, which they cannot in view of the position obtaining in the case. According to the respondent no.2, the respondent corporation is completely a distinct and different corporation. The petitioners for their own benefit are trying to place the State Financial Corporation of J&K State analogous with the respondent corporation. The respondent no.2 maintains that had the petitioners not been satisfied with the pay scale attached to the posts held by them, they ought to have not responded to the advertisement notice and/or ought to have raised the issue during their probation period and/or before completing SWP no.1265/2016 Page 4 of 133 probation period, they should have agitated the matter. Even after regularisation in case they are not satisfied, they are at liberty to choose any other arrangement. The respondent corporation identified the post of the Accounts Assistant and in a transparent manner advertised the same through the advertisement notification, the selection of the eligible candidates was made by the selection committee and subsequently the appointment of the meritorious candidates was effected and then their regularisation has taken place. In this entire process, according to the respondent no.2, the petitioners took part and had no grumble or objection, which can function as legal estoppel for them to seek the benefit/relief as is being sought for by them in the writ petition. Moreover, the pay scale, being claimed by the petitioners, is not applicable to the posts held by them in the respondent corporation. It is maintained that the respondent corporation is bound to adhere to the mechanism and transparent selection on the option of the candidates for the posts of the Finance Assistants and their posting in the respondent corporation. The posts of Accounts Assistants, as claimed by the respondent no.2, is below the rank of Assistant Accounts Officer (AAO) of the State Government and the petitioners, therefore, cannot equate the AAO with the Accounts Assistant and seek similar pay scale that too when they are employees of the respondent corporation and appointed in the corporation and not in the government. Their further SWP no.1265/2016 Page 5 of 133 elevation or promotion chances are also in the corporation and not in any government department. It is also asserted that the management of the respondent corporation is aware of the duties vis-à-vis streamlining of the work of the corporation and to ensure smooth functioning of the corporation. The identification of the posts as per need and requirement is made as per the decision of the respondent corporation. The respondent no.2 has denied the contention that the nomenclature used by the respondent corporation was made a tool of harassment to suppress the claims of the petitioners and that the petitioners by their conduct/ participation in the recruitment process undertaken by the corporation for filling up the said posts are estopped under law to challenge the process and/or to seek higher pay scales.
4. Rejoinder has been filed by the petitioners. The petitioners state that they have been appointed in the respondent corporation as the Finance Assistants and the minimum qualification in terms of the advertisement notice, pursuant to which the petitioners were appointed, for the said posts was Masters with at least 60% marks in the P.G. Course. The equivalent posts in the State and Central Government Departments carry much higher pay scale. It is avowed that the settled position of law is that a government employee working against a particular post can claim parity with the Pay Scale attached to another post in case the employee has been appointed pursuant to SWP no.1265/2016 Page 6 of 133 a fair and transparent selection process in accordance with Article 14 of the Constitution of India; the qualifications required for both the posts are same and similar in nature. The petitioners claim that the respondent corporation is a government owned corporation and therefore the respondent corporation is duty bound to maintain the parity of its employees with the employees of the Government and it cannot discriminate with its employees or treat them in a manner not befitting the status of the government employees. The petitioners' grumble that the work done by them is on a much higher footing than the work discharged by the Assistant Accountant Officers in the State Government and other sister corporations/ organisation and the workload on them is much enormous than of an ordinary Assistant Accounts Officers. It is also contended that the petitioners have been holding additional charge of many projects, wherein they are required to look after the expenditures, establishments, requisitions and reconciliations etcetera, which tasks are being performed by the Managers or at least Assistant Accounts Officers, with assistance of various officers. They discharge the functions relating to the Accounts, Stock, Cashier, Allotments/Agreements, Deposits and Contractor ledgers and thus the petitioners perform not only the tasks of Assistant Accounts Officers but are solely managing the financial aspects of the respondent corporation. The petitioners have also been placed as the Nodal Officers in SWP no.1265/2016 Page 7 of 133 view of their merit and capability. The petitioners have been assigned the jobs of conducting the audit of all the subordinate officers of Kashmir Division. It is averred that the petitioners are highly qualified having Masters in the Post Graduate Degrees while as the qualification required for the post of the Assistant Accounts Officer is Bachelor's Degree only and therefore the petitioners have a preferential claim over the Assistant Accounts Officers of the State for placement in the higher pay grade and the same cannot be denied to them. The petitioners vehemently claim and maintain that the Pay Band was not disclosed in the advertisement notice and they had made a number of representations in this regard as well. The petitioners also aver that the State Government has also written a communication dated 2nd March 2016 to H.E. the Governor of the State, wherein the position has been clarified and it has been mentioned that the pay scale attached to the post was not mentioned in the advertisement notice and that the petitioners' claim would be placed before the relevant Committee. The Managing Director has, it is next stated, also directed to process the case of the petitioners for placement in higher scale and the Director, Finance, has also written a letter dated 19th February 2016 to the State Government in this behalf.
5. I have heard the learned counsel for the parties and considered the matter.
SWP no.1265/2016 Page 8 of 1336. Learned counsel representing the petitioners, aiming at to bolster the case set up by the petitioners, has vehemently argued that the petitioners are claiming the higher pay scale on the principles of equal pay for equal work. The petitioners maintain that all the accounts-aspects of the corporation and the burden of the said job profile is equivalent to the post of the Assistant Accounts Officer in the State Government Department. The Central Government pays to the said officers the Pay Scale of Rs.9200-34800 with the Grade Pay of Rs.4800.00. In this regard the learned counsel for the petitioners has invited attention of this Court to the Recruitment Rules for the post of the Assistant Accounts Officer in the Ministry of Finance (p.44 to writ petition). He has also taken this Court to the Revised Recruitment Rules for the post of Assistant Finance and Accounts Officer in ICAR Headquarters / Institutes (p.47-52 to writ petition). The learned counsel has averred that the qualification that the petitioners possess and on the basis whereof, they have been appointed as Finance Assistants in the respondent corporation, is MBA (Finance)/ MFC / Misc (Finance) / M. Com, whereas the persons possessing the same qualification in J&K State Financial Corporation are being paid the salary in the Pay Band of Rs.9300-34800 with Pay Band of Rs.5200/- and in the J&K Entrepreneurship Development Institute (JKEDI) with the Grade Pay of Rs.4600/- and in J&K Minerals Limited in the Grade Pay of Rs.4200.00. The learned SWP no.1265/2016 Page 9 of 133 counsel has stoutly stated that even the respondent corporation itself has recruited the persons, possessing the same qualification as Assistant General Managers, who are being given the Grade Pay of Rs.5200.00. He contends that the pay scale given to the petitioners is being given to the Accounts Assistants (Apprentices) by other departments and corporations. To buttress his arguments, he has invited attention of this Court to the various recruitment rules and communications attached with the writ petition.
7. The next submission of the learned counsel for the petitioners is that the Supreme Court in Randhir Singh v. Union of India1 has held that the grant of equal pay for equal work is enshrined in Article 39(d) of the Constitution of India and that the same is a constitutional goal and capable for enforcement via constitutional Courts. The doctrine of equal pay for equal work has assumed the significance of fundamental right in service jurisprudence having regard to the constitutional mandate under Article 14 and 16 of the Constitution of India and the doctrine is implicit in the doctrine of equality enshrined in Article 14 and flows from it and thus is a part of Article 14 and 16 (1), which, according to the learned counsel for the petitioners, has been so said by the Supreme Court in Grih Kalyan Kendra v. UOI2 and State of Maharashtra v. Pramod Bhartiya3. Learned counsel has, while referring to Shyam 1 AIR 1982 SC 879 2 AIR 1991 SC 1173 3 AIR 1993 SC 286 SWP no.1265/2016 Page 10 of 133 Babu Verma v UOI4; Government of W.B. v. Tarun K. Roy5; and State of Punjab v. The Senior Vocational Staff Masters Association6, also asserted that for claiming and for application of the doctrine of equal pay for equal work, the qualification, the eligibility, the mode of selection, the nature and the quality of the work, status are relevant factors. The pay scales can be different only when there can be formed a reasonable classification between the two sets of the employees which sustains the test of intelligible differentia in accordance with the Article 14 of the Constitution of India.
8. Learned counsel for the petitioners has, in furtherance of advancing the arguments, pleaded that the petitioners have admittedly been appointed in terms of a rigorous selection and they have faced a strict screening test and viva voce test to get appointed as the Finance Assistants. The petitioners perform the functions of the officers, to which they equate themselves for the purpose of the pay scale and their workload and functions performed by them. In this connection the learned counsel has invited the attention of this Court to an office memo (p. 90 to writ petition) to contend that it has been admitted that sense of uncertainty in the service has been realised by the Finance Assistants though selected in the respondent corporation after proper selection process and that it would be 4 (1994) 2 SCC 521 5 (2004) 1 SCC 347 6 2017 (9) SCC 379 SWP no.1265/2016 Page 11 of 133 appropriate that the Finance Assistants, having professional Master's Degree, are placed in the pay band of 9300-34800 with Grade Pay of Rs.4200/- purely on the analogy of other departments/corporations, where the posts are advertised and placed in the Grade Pay of Rs.4200/-, Rs.4800/- and Rs.5200/- inasmuch as the said step will not only encourage the newly recruited cadre but also bring them out of uncertainty associated with their properly defined emoluments after completion of their probation period. He has also argued that once the petitioners are entitled to the higher grades, the respondent corporation cannot turn back the liability on them by stating that if the pay band is in violation of Article 14, why was the appointment accepted by the petitioners. To reinforce this argument, he has placed reliance on Basheshar Nath v. CIT7. He has also stated that the petitioners were bound to exhaust alternative remedy before approaching this Court and therefore the petition and claim of the petitioners is protected by the doctrine of exhaustion of alternative remedy and in this connection he has relied upon the axiom of the Supreme Court in State of Haryana v. Chanan Mal8, that no mandamus lies unless the authority is called upon to discharge its legal obligation and thus the petitioners have followed the definite and well settled course of law. His submission is that the question of 7 AIR 1959 SC 149 8 AIR 1976 SC 1654 SWP no.1265/2016 Page 12 of 133 estoppel does not arise at all in the cases, like present one and that the Court is only required to seek from the material placed before it that the work done is similar. Reference in this regard is made to Abdul Rashid Khan v. State of J&K9.
9. Per contra, the learned counsel for the respondents has insisted that there are no recruitment rules in vogue and the bylaws are presently in operation in the respondent corporation. He also states that the petitioners were regularised with the specific scale of pay, which is applicable as per the decision of the respondent corporation and at the same time the petitioners cannot be allowed to approbate and reprobate inasmuch as on one hand they have accepted their regularisation and on the other hand, they challenge the same to the extent of their placement in the pay scale mentioned in the regularisation order. The post of the Accounts Assistant, according to the learned counsel for the respondents, is below the rank of the Assistant Accounts Officer (AAO) of the State Government and therefore, the petitioners cannot equate AAO with the Accounts Assistant/Finance Assistant and seek similar pay scale, that too when they are employees of the respondent corporation and not that of the government department.
10. Jammu and Kashmir State Power Development Corporation Limited has been incorporated as a Private Limited Company on 16th February 1995, so as to takeover, 9 JKJ 2017 (2) 371 HC SWP no.1265/2016 Page 13 of 133 execute, complete, operate and maintain all the power stations and the power projects of the State. For its day to day functioning, earlier the respondent corporation had been utilizing the services of personnel deputed from various government departments. However, it was resolved that the respondent department should take necessary steps for building its own cadre for all its wings, like Engineering, Finance, IT, HR etcetera. The Managing Director of the respondent corporation was authorised to make appointments of 75 Finance Assistants and 25 Steno Typists in the grade of 5200-20200 with the Grade Pay of Rs.2400 on contractual basis for a period of two years, after which they would be considered for regularisation subject to their satisfactory performance. It is discernible from Agenda Item no.65.21 - Appointment of Accounts Staff and Stenographers in JKSPDC (p.28-31 to writ petition) it was proposed to recruit the Finance Assistants from the open market for which a proper selection would be conducted and the Consultants implementing the Project as well as Project Management Consultants for Double Entry Project, had recommended that the said accounts personnel would be called as "Finance Assistant" to differential from the State Government nomenclature of "Accounts Assistants"
and they should have the minimum qualification of MBA (Finance)/MFC/MSC (Finance) / M.Com, having passed with at least 60% marks. It was also prosed to recruit the Finance Assistants and Steno Typists in the pay scale of SWP no.1265/2016 Page 14 of 133 5200-20200 with Grade Pay of Rs.2400/-, initially on contract basis at the minimum of the scale and grade pay for a period of two years, after which they would be considered for regularisation based on their performance. The accounts personnel would be imparted training in double entry commercial accounting and ERP after their appointment before being inducted into practical field. The said proposal appears to have been approved, which was followed by issuance of Advertisement Notice dated 25th August 2012 (Annexure B to writ petition), inviting applications from the permanent residents of Jammu and Kashmir State for contractual appointment to the posts of Junior Engineers (Electrical, Civil and Mechanical), Geological Assistants, Steno Typists cum Programming Assistants, Finance Assistants. The consolidated emoluments per month shown against the post of Finance Assistant is Rs.7600/-. The Advertisement Notice, on its glance, does not portray or mention what would be the Pay Scale and Grade Pay on regularisation. In that view of the matter, the submission of the petitioners that there was no occasion for the petitioners to have a ken qua the Pay Scale and Grade Pay the moment they responded to the Advertisement Notice 25th August 2012, for the post of Finance Assistant, is worth to be accredited and acknowledged.
11. The petitioners' contention is that the services rendered by them equate and are akin to the functions of and services SWP no.1265/2016 Page 15 of 133 rendered by the Assistant Accounts Officers in the Comptroller and Auditor General of India/ICAR; the Assistant Managers (Accounts) / Small Branch Officers in the J&K State Financial Corporation; the Managers/ Assistant Manager/Senior Managers, Finance & Accounts/ Assistant Managers in the J&K Entrepreneurship Institute (JKEDI); the Executive Officers in the J&K Khadi & Village Industries Board/Urban Local Bodies; the Trainee Officer in the Chenab Valley Power Projects Private Limited; and therefore, they are also entitled to be given the pay scale of 9300-34800 with Grade Pay of Rs.4800.00. This submission of petitioners needs fulsome discourse and discussion. Mere reference to leaflets concomitant with the writ petition will not be suffice exhorting parity and akinness, however, concurrently it cannot be heard saying from the mouth of the respondents that the petitioners are not entitled to 'equal pay for equal work'.
12. It is germane to mention here that the Power Development Department (PDD) is one of the departments of the Jammu & Kashmir State Government responsible for all functions related to transmission and distribution of electric power in the State. However, the generation sector is being looked after by the J&K State Power Development Corporation (JKSPDC) - respondent corporation herein, which was carved out of PDD in the year 1995. Some of the principal and chief objectives of the respondent corporation is to plan, SWP no.1265/2016 Page 16 of 133 promote and organize an integrated and efficient development of electric power in all its aspects; investigation, research, design and preparation of preliminary feasibility and detailed project reports; construction, generation, operation and maintenance of power stations and sale of power thereof; construction of transmission lines and ancillary works for timely and co- coordinated supply of power. Not only this the composition of the Board of the Directors of the respondent corporation comprises of the Governor of the J&K State as Chairman; and Directors of the Board are, amongst others, Government Officials, viz. Chief Secretary of the J&K State Government, Financial Commissioner, Planning and Development Department; Commissioner/ Secretary to Government, Finance Department; Commissioner, Power Development Department. The respondent corporation in its Reply has also admitted that the respondent corporation is a government owned corporation.
13. The above facts and facets clearly portray that not only is the respondent corporation a government owned company, but is a Government corporation, which is under the complete control and management of the J&K State Government. Nevertheless, much more is to be mentioned and discussed here qua respondent corporation being instrumentality of the State
14. The contention raised on behalf of the learned counsel for the respondent corporation is that a government company SWP no.1265/2016 Page 17 of 133 stands on a wholly different footing from a statutory corporation, for while a statutory corporation is established by a statute, a government company is incorporated like any other company by obtaining a certificate of incorporation under the Companies Act and, therefore, a government company cannot come within the scope of the term "the State" as defined in Article 12 of the Constitution. He also contends that a statutory corporation is usually established in order to create a monopoly in the State in respect of a particular activity. A government company is, however, not established for this purpose. Assuming a government company is "the State" within the meaning of Article 12, a contract of the employment entered into by it, is like any other contract entered into between the two parties and a term in that contract cannot be struck down under Article 14 of the Constitution on the ground that it is arbitrary or unreasonable or unconscionable or one-sided or unfair and therefore, the petitioners are not entitled to exhort the equal pay for equal work.
15. The definition of the expression "the State" furnished in the Article 12 of the Constitution is wide enough to include within its scope and reach a Government company. A State is entitled to carry on any activity, even a trading activity, through any of its instrumentalities or agencies, whether such instrumentality or agency be one of the Departments of the Government, a statutory corporation, a statutory authority or a Government company incorporated under SWP no.1265/2016 Page 18 of 133 the Companies Act. Merely because a Government company carries on a trading activity or is authorized to carry on a trading activity does not mean that it is excluded from the definition of the expression "the State" contained in Article 12.
16. The word "State" has different meanings, depending upon the context in which it is used. In the sense of being a polity, it is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2005, as "a body of people occupying a defined territory and organized under a sovereign government". The same dictionary defines the expression "the State" as "the body politic as organized for supreme civil rule and government; the political organization which is the basis of civil government; hence, the supreme civil power and government vested in a country or nation". According to Black's Law Dictionary, Fifth Edition, page 1262, "In its largest sense, a 'state' is a body politic or a society of men". According to Black, the term "State" may refer "either to the body politic of a nation (e.g. United States) or to an individual governmental unit of such nation (e.g. California)". In modern international practice, whether a community is deemed a State or not depends upon the general recognition accorded to it by the existing group of other States. A State must have a relatively permanent legal organization, determining its structure and the relative powers of its major governing bodies or organs. This legal organizational permanence of SWP no.1265/2016 Page 19 of 133 a State is to be found in its Constitution. With rare exceptions, such as the United Kingdom, most States now have a written Constitution. The Constitutional structure of a State may be either unitary, as when it has a single system of government applicable to all its parts, or federal when it has one system of government operating in certain respects and in certain matters in all its parts and also separate governments operating in other respects in distinct parts of the whole. In such a case the units or subdivisions having separate governments are variously called 'states' as in India, U.S.A. and Australia, 'provinces' as in Canada, 'cantons' as in Switzerland, or designated by other names. Our Constitution is federal in structure. Clause (1) of Article 1 of the Constitution provides that "India, that is Bharat, shall be a Union of States" and clause (2) of that Article provides that "The States and the territories thereof shall be as specified in the First Schedule". The word "States" used in Article 1, thus, refers to the "federating units. India itself being a State consisting of these units. The term "States" is defined variously in some of the other Articles of the Constitution as the context of the particular Part of the Constitution in which it is used requires. Part VI of the Constitution is headed as "the States" and provides for the form of the three organs of a State, namely, the Executive, the Legislature and the Judiciary.
SWP no.1265/2016 Page 20 of 13317. Article 12 forms part of Part III of the Constitution which deals with Fundamental Rights and provides as follows:
"Article 12. Definition. -- In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India"
18. The same definition applies to the expression "the State"
when used in Part IV of the Constitution which provides for the Directive Principles of State Policy, for the opening Article of Part IV, namely, Article 36 provides:
"Article 36. Definition. -- In this Part, unless the context otherwise requires, 'the State' has the same meaning as in Part III."
19. Thus, the expression "the State" when used in Parts III and IV of the Constitution is not confined to only the federating States or the Union of India or even to both. By the express terms of Article 12 the expression "the State" includes - (1) the Government of India, (2) Parliament of India, (3) the Government of each of the States which constitute the Union of India, (4) the Legislature of each of the States which constitute the Union of India, (5) all local authorities within the territory of India, (6) all local authorities under the control of the Government of India, (7) all other authorities within the territory of India, and (8) all other authorities under the control of the Government of India.
20. There are three aspects of the Article 12 of the Constitution, which require to be particularly noticed.
SWP no.1265/2016 Page 21 of 133These aspects are: (i) the definition given in Article is not an explanatory and restrictive definition but an extensive definition, (ii) it is the definition of the expression "the State" and not of the term "State" or "States", and (iii) it is inserted in the Constitution for the purposes of Parts III and IV thereof.
21. As pointed out in Craies on Statute Law, Seventh Edition, page 213, where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and ex facie restrictive; and whenever an interpretation clause defines a term to include something, the definition is extensive. While an explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause, so that wherever the word defined is used in the particular statute in which that interpretation clause occurs, it will bear only that the meaning unless where, as is usually provided, subject or context otherwise requires, an extensive definition, expands or extends the meaning of the word defined to include within it what would otherwise not have been comprehended in it when the word defined is used in its ordinary sense. The Article uses the word "includes". It, thus, extends the meaning of the expression "the State" so as to include within it also what otherwise may not have been comprehended by that expression when used in its ordinary legal sense.
SWP no.1265/2016 Page 22 of 13322. Article 12 defines the expression "the State" while the other Articles of the Constitution, such as Article 152 and Article 308 define the term "State". The deliberate use of the expression "the State" in the Article as also in the Article 36 would have normally shown that this expression was used to denote the State in its ordinary and Constitutional sense of an independent or sovereign State and the inclusive clause in the Article 12 would have extended this meaning to include within its scope whatever has been expressly set out in the Article. The definition of the expression "the State" in Article 12, is however, for the purposes of the Parts III and IV of the Constitution. The contents of these two Parts clearly show that the expression "the State" in Article 12 as also in Article 36 is not confined to its ordinary and Constitutional sense as extended by the inclusive portion of Article 12 but is used in the concept of the State in relation to the Fundamental Rights guaranteed by the Part III of the Constitution and the Directive Principles of the State Policy contained in the Part IV of the Constitution, which Principles are declared by Article 37 to be fundamental to the governance of the country and enjoins upon the State to apply in making the laws.
23. What then does the expression "the State" in the context of the Parts III and IV of the Constitution mean? Men's concept of the State as a polity or a political unit or entity and what the functions of the State are or should be, have SWP no.1265/2016 Page 23 of 133 changed over the years and particularly in the course of this century. A man cannot obstinately cling to the same ideas and concepts all his life. As Emerson said in his essay on "Self-Reliance", "A foolish consistency is the hobgoblin of little minds". Man is by nature ever restless, ever discontent, ever seeking something new, ever dissatisfied with what he has. It is inherent trait in the nature of a man, is reflected in the society in which he lives, for a society is a conglomerate of men who live in it. Just as man by nature is dissatisfied, so is society. Just as man seeks something new, ever hoping that a change will bring about something better, so does society. Old values, old ideologies and old systems are thus replaced by new ideologies, a new set of values and a new system, they in their turn to be replaced by different ideologies, different values and a different system. The ideas that seem revolutionary become outmoded with the passage of time and the heresies of today become the dogmas of tomorrow. What proves to be adequate and suited to the needs of a society at a given time and in particular circumstances, turns out to be wholly unsuited and inadequate in different times and under different circumstances.
24. The story of the mankind is punctuated by the progress and retrogression. Empires have risen and crashed into the dust of history. Civilizations have flourished, reached their peak and passed away. In the year 1625, Carew, C.J., while delivering the opinion of the House of Lords in Re the SWP no.1265/2016 Page 24 of 133 Earldom of Oxford10, in a dispute relating to the descent of that Earldom, said:
"... and yet time hath his revolution, there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene . . ."
25. The cycle of change and experiment, rise and fall, growth and decay, and of the progress and retrogression recurs endlessly in the history of man and the history of civilization. T.S. Eliot in the First Chorus from "The Rock"
said:
"O Perpetual revolution of configured stars, O Perpetual recurrence of determined seasons, O world of spring and autumn, birth and dying! The endless cycle of idea and action, Endless invention, endless experiment".
26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, "Then I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool". The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are, however, not best fitted for the role of adapting the law to the necessities of the time, for 10 [1625] W.Jo. 96, 101. s.c. [1626] 82 E.R. 50, 53 SWP no.1265/2016 Page 25 of 133 the legislative process is too slow and the legislatures often divided by the politics, slowed down by the periodic elections and overburdened with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and time-consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the Courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society.
27. A large number of authorities have been handed out by the Courts to show how the Courts have interpreted the expression, "the State" in Article. As these authorities are decisions of the Courts, I must perforce go through the whole gamut of them though I may preface an examination of these authorities with the observation that they only serve to show how the concepts of the Courts have changed both with respect to Article 12 and Article 14 to keep pace with changing ideas and altered circumstances. Before embarking upon this task, I would, however, like to quote the following passage, which has become a classic, from the opening Paragraph of Justice Oliver Wendell Holmes's "The Common Law", which contains the lectures delivered by him while teaching law at Harvard and which book was published in 1881 just one year before he was appointed an SWP no.1265/2016 Page 26 of 133 Associate Justice of the Massachusetts Supreme Judicial Court:
"It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past."
28. Succinctly are sketched the temper of the times in which our Constitution was enacted and the purposes for which Parts III and IV inserted in our Constitution.
29. The bombs which had rained down upon the cities of Europe, Africa and Asia and the Islands in the Pacific had changed, and changed dramatically, not only the political but also the sociological, ideological and economic map of the world. A world reeling from the horrors of the Second World War and seeking to recover from the trauma caused by its atrocities sought to band all nations into one Family of Man and for this purpose set up the United Nations Organization in order to save succeeding generations from SWP no.1265/2016 Page 27 of 133 the scourge of war which had twice in this century brought untold sorrow to mankind and in order to reaffirm faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights, of man and woman and of nations large or small, and thus to give concrete shape to the dream of philosophers and poets that the war- drums would throb no longer and the battle-banners would be furled in the Parliament of Man and the Federation of the World. But much had gone before. There was the signing of the Inter-Allied Declaration of June 12, 1941, at St. James's Palace in London by the representatives of the United Kingdom, the Commonwealth, General de Gaulle and the governments in exile of the European countries conquered by Nazi Germany; there was the Atlantic Charter of August 14, 1941; there was the Declaration of the United Nations signed on New Year's Day of 1942 at Washington, D.C., by twenty-six nations who were fighting the Axis; there was the Declaration made at the Moscow Conference in October 1943 and at the Teheran Conference on December 1, 1943; there was the Dumbarton Oaks Conference held in Washington, D.C., in August and September 1944; there was the Yalta Conference in February 1945; all these culminating in the adoption on June 25, 1945, of the Charter of the United Nations in the Opera House of San Francisco and the affixing of signatures thereon the next day in the auditorium of the Veterans' Memorial Hall. Thereafter, in pursuance SWP no.1265/2016 Page 28 of 133 of Article 68 of the Charter of the United States, the Economic and Social Council set up the Human Rights Commission in 1946. This Commission began its work in January 1947 under the chairmanship of Mrs. Eleanore Roosevelt, the widow of President Franklin D. Roosevelt. The Universal Declaration of Human Rights prepared by the Commission was adopted by the General Assembly on December 10, 1948, at its session held in the Palais de Chaillot in Paris. Of the fifty-eight nations represented at that Session, none voted against it, two were absent, and eight abstained from voting.
30. It was thus in an atmosphere surcharged with the human suffering and yet a firm resolve not to succumb to it that the Constituent Assembly, which was set up to frame the Constitution of India, embarked upon its task on the December 9, 1946, re-assembled after the midnight of the August 14, 1947, as the sovereign Constituent Assembly for India. After Partition and fresh elections in the new Provinces of West Bengal and East Punjab, it re-assembled on October 31, 1947, and thereafter on November 26, 1949 adopted and enacted the Constitution of India.
31. Before commencing its work, the Constituent Assembly adopted a Resolution laying down its objectives:
"1. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution; . . .SWP no.1265/2016 Page 29 of 133
4. Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people: and
5. Wherein shall be guaranteed and secured to all the people of India justice, social, economic and political :
equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association, and action, subject to law and public morality; and
6. Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and
7. Whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations: and
8. This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind".
32. In its strict legal sense, the written Constitution of a country is a document, which defines the regular form or system of its government, containing the rules that directly or indirectly affect the distribution or exercise of the sovereign power of the State and it is thus mainly concerned with the creation of the three organs of the State
- the executive, the legislature and the judiciary, and the distribution of governmental power among them and the definition of their mutual relation. [ See: Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar (1952) SCR 89, 106, O. Hood Phillips' "Constitutional and Administrative Law", Sixth Edition, page 11; Dicey's "An Introduction to the Study of the Law of the Constitution", Tenth Edition, page 23; and Jowitt's Dictionary of English Law, Second Edition, Volume I, page 430].
SWP no.1265/2016 Page 30 of 13333. The framers of our Constitution did not, however, want to frame for the Sovereign Democratic Republic which was to emerge from their labours a Constitution in the strict legal sense. They were aware that there were other Constitutions which had given expression to certain ideals as the goal towards which the country should strive and which had defined the principles considered fundamental to the governance of the country. They were aware of the events that had culminated in the Charter of the United Nations. They were aware that the Universal Declaration of Human Rights had been adopted by the General Assembly of the United Nations, for India was a signatory to it. They were aware that the Universal Declaration of Human Rights contained certain basic and fundamental rights appertaining to all men. They were aware that these rights were born of the philosophical speculations of the Greek and Roman Stoics and nurtured by the jurists of ancient Rome. They were aware that these rights had found expression in a limited form in the accords entered into between the rulers and their powerful nobles, as for instance, the accord of 1188 entered into between King Alfonso IX and the Cortes of Leon, the Magna Carta of 1215 wrested from King John of England by his barons on the Meadow of Runnymede and to which he was compelled to affix his Great Seal on a small island in the Thames in Buckinghamshire - still called Magna Carta Island, and the guarantees which King Andrew II of Hungary was forced SWP no.1265/2016 Page 31 of 133 to give by his Golden Bull of 1822. They were aware of the international treaties of the mid seventeenth century for safeguarding the right of religious freedom and the rights of aliens. They were aware of the full blossoming of the concept of Human Rights in the writings of the "philosophes" such as Voltaire, Rousseau, Diderot, Rayal, d' Alembert and others, and of the concrete expression given to it in the various Declarations of Rights of the American Colonies (particularly Virginia) and in the American Declaration of Independence. They were aware that in 1789, during the early years of the French Revolution, the French National Assembly had in "The Declaration of the Rights of Man and of the Citizen", proclaimed these rights in lofty words and that Revolutionary France had translated them into practice with bloody deeds. They were aware of the treaties entered into between various States in the nineteenth century providing protection for religious and other minorities. They were aware that these rights had at last found universal recognition in the Universal Declaration of Human Rights. They were aware that the first ten Amendments to the Constitution of the United States of America contained certain rights akin to Human Rights. They knew that the Constitution of Eire contained a chapter headed "Fundamental Rights" and another headed "Directive Principles of State Policy". They were aware that the Constitution of Japan also contained a chapter headed SWP no.1265/2016 Page 32 of 133 "Rights and Duties of the People". They were aware that the major traditional functions of the State have been the defence of its territory and its inhabitants against external aggression, the maintenance of law and order; the administration of justice, the levying of the taxes and the collection of the revenue. They were also aware that increasingly, and particularly in the modern times, several States have assumed numerous and wide-ranging functions, especially in the fields of the education, health, social security, control and maintenance of the natural resources and the natural assets, transport and the communication services and operation of certain industries considered basic to the economy and growth of the nation. They were also aware that the Section 8 of Article 1 of the Constitution of the United States of America contained "a welfare clause" empowering the federal government to enact the laws for the overall general welfare of the people. They were aware that the countries such as the United States, the United Kingdom and Germany had passed the social welfare legislation.
34. The framers of our Constitution were men of vision and ideals, and many of them had suffered in the cause of the freedom. They wanted an idealistic and philosophic base upon which to raise the administrative superstructure of the Constitution. They, therefore, headed our Constitution with a Preamble, which declared India's goal and inserted the Parts III and IV in the Constitution.
SWP no.1265/2016 Page 33 of 13335. The Preamble to the Constitution, as amended by the Constitution (Forty-second Amendment) Act, 1976, proudly proclaims:
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
36. Part III of the Constitution gives a Constitutional mandate for certain Human Rights, -- called Fundamental Rights in the Constitution -- adapted to the needs and the requirement of a country freed from the foreign rule and desirous of forging a strong and powerful nation capable of taking an equal place among the nations of the world. It also provides a Constitutional mode of enforcing them. Amongst these Rights is the one contained in Article 14, which provides:
"14. Equality before law .--
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
37. Part IV of the Constitution prescribes the 'Directive Principles of State Policy'. These Directive Principles have not received the same Constitutional mandate for their enforcement as the Fundamental Rights have done. In the SWP no.1265/2016 Page 34 of 133 context of the Welfare State which is the goal of our Constitution, Articles 37 and 38 are important. They are as follows:
"37. Application of the Principles contained in this Part.-- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws."
"38. State to secure a social order for the promotion of welfare of the people.--
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations."
38. Under clause (a) of Article 39, the State is, in particular, to direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. And importantly, which is subject-matter of present case as well, is clause (d) of Article 39 that the State directs its policy towards securing that there is equal pay for equal work for both men and women.
39. Article 41 directs that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work.
40. The difference between Part III and Part IV is that while Part III prohibits the State from doing certain things SWP no.1265/2016 Page 35 of 133 (namely, from infringing any of the Fundamental Rights), Part IV enjoins upon the State to do certain things. This duty, however, is not enforceable in law but none the less the Court cannot ignore what has been enjoined upon the State by Part IV, and though the Court may not be able actively to enforce the Directive Principles of State Policy by compelling the State to apply them in the governance of the country or in the making of laws, the Court can, if the State commits a breach of its duty by acting contrary to these Directive Principles, prevent it from doing so.
41. In the working of the Constitution it was found that some of the provisions of the Constitution were not adequate for the needs of the country or for ushering in a Welfare State and the constituent body empowered in that behalf amended the Constitution several times. By the very first amendment made in the Constitution, namely, by the Constitution (First Amendment) Act, 1951, clause (6) of Article 19 was amended with retrospective effect. Under this amendment, sub-clause (g) of clause (1) of Article 19 which guarantees to all citizens the right to carry on any occupation, trade or business, was not to prevent the State from making any law reIating to the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. This amendment also validated the operation of all existing laws in so far as they had made similar provisions. Article 298, SWP no.1265/2016 Page 36 of 133 as originally enacted, provided that the executive power of the Union and of each State was to extend, subject to any law made by the appropriate Legislature, to the grant, sale, disposition or mortgage of any property held for the purposes of the Union or of such State, as the case may be, and to the purchase or acquisition of property for those purposes respectively, and to the making of contracts; and it further provided that all property acquired for the purposes of the Union or of a State was to vest in the Union or in such State, as the case may be. Article 298 was substituted by the Constitution (Seventh Amendment) Act, 1956. As substituted, it provides as follows:
"298. Power to carry on trade, etc. -
The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose :
Provided that -
(a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State; and
(b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to Legislation by Parliament."
42. Article 298 as so substituted, therefore, expands the executive power of the Union of India and of each of the States, which collectively constitute the Union, to carry on any trade or business. By extending the executive power of the Union and of each of the States to the carrying on of any trade or business, Article 298 does not, however, convert either the Union of India or any of the States which SWP no.1265/2016 Page 37 of 133 collectively form the Union into a merchant buying and selling goods or carrying on either trading or business activity, for the executive power of the Union and of the States, whether in the field of trade or business or in any other field, is always subject to Constitutional limitations and particularly the provisions relating to Fundamental Rights in Part III of the Constitution and is exercisable in accordance with and for the furtherance of the Directive Principles of State Policy prescribed by Part IV of the Constitution.
43. The State is an abstract entity and it can, therefore, only act through its agencies or instrumentalities, whether such agency or instrumentality be human or juristic. The trading and business activities of the State constitute "public enterprise". The structural forms in which the Government operates in the field of public enterprise are many and varied. These may consist of Government departments, statutory bodies, statutory corporations, Government companies, etc. In this context, we can do no better than cite the following passage from "Government Enterprise - A Comparative Study" by W. Friedmann and J.F. Garner, at page 507 :
"The variety of forms in which the various States have, at different times, proceeded to establish public enterprises is almost infinite, but three main types emerge to which almost every public enterprise approximates: (1) departmental administration; (2) the joint stock company controlled completely or partly by public authority; and finally (3) the public corporation proper, as a distinct type SWP no.1265/2016 Page 38 of 133 of corporation different from the private law company. Each of these three types will be briefly analysed in a comparative perspective.
As the tasks of Government multiplied, as a result of defence needs, post-war crises, economic depressions and new social demands, the framework of civil service administration became increasingly insufficient for the handling of the new tasks which were often of a specialised and highly technical character. At the same time, 'bureaucracy' came under a cloud. In Great Britain j the late Lord Hewart had written of 'the new l despotism,' and Dr. C.K. Allen of 'bureaucracy triumphant'. In France the Confederation Generale du Travail (CGT) had stated in its Programme in 1920 that 'We do not wish to increase the functions of the State itself nor strengthen a system which would subject the basic industry to a civil service regime, with all its lack of responsibility and its basic defects, a process which would subject the forces of production to a fiscal monopoly. This distrust of government by civil service, justified or not, was a powerful factor in the development of a policy of public administration through separate corporations which would operate largely according to business principles and be separately accountable. In the common law countries, where the Government still enjoys considerable immunities and privileges in the fields of legal responsibility, taxation, or the binding force of statutes, other considerations played their part. It seemed necessary to create bodies which, if they were to compete on fair terms in the economic field, had to be separated and distinct from the Government as regards immunities and privileges."
44. The immunities and privileges possessed by the bodies, so set up by the Government in India or by the States, cannot, however, be the same as those possessed by the similar bodies, established in the private sector because setting up of such bodies is referable to the executive power of the Government under Article 298 to carry on any trade or business. As pointed out by Mathew, J., in Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another (1975) SCR 619, "The governing power wherever SWP no.1265/2016 Page 39 of 133 located must be subject to the fundamental constitutional limitations". The privileges and immunities of these bodies, therefore, are subject to Fundamental Rights and exercisable in accordance with and in furtherance of the Directive Principles of State Policy".
45. It is in the context of what has been stated above that I will now review various authorities, by which it can be seen that how the Constitutional thinking developed and the conceptual horizon widened the new vistas, till then shrouded in the mist of the conventional legal phraseology and the traditional orthodoxy, opened out to the eye of the judicial interpretation, and many different facets of several Articles of the Constitution, including Article 12 and 14, thitherto unperceived, became visible.
46. In Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, (1955) 2 S.C.R. 225, the State of Punjab, which used to select books published by private publishers for prescribing them as text-books and for this purpose used to invite offers from publishers and authors, altered that practice and amended the notification in that behalf so that thereafter only authors were asked to submit their books for approval as text-books. The validity of this notification was challenged inter alia on the ground that the executive power of a State under Article 162 extended only to executing the laws passed by the legislature or supervising the enforcement of such laws. Under Article 162, subject to the provisions of the Constitution, the SWP no.1265/2016 Page 40 of 133 executive power of a State extends to the matters with respect to which the Legislature of the State has power to make laws, namely, the matters enumerated in the State List (List II) in the Seventh Schedule to the Constitution. Under the proviso to that Article, in any matter with respect to which the Legislature of a State and Parliament have power to make laws, that is, the matters enumerated in the Concurrent List (List III) in the Seventh Schedule to the Constitution, the executive power of the State is to be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. Under Article 154 (1), the executive power of the State is vested in the Governor and is to be exercised by him either directly or through the officers, subordinate to him, in accordance with the Constitution. The corresponding provisions as regards the executive power of the Union of India are contained in Article 73 and Article 51 (1). Repelling the above contention, Mukherjea, C.J., who spoke for the Constitution Bench of the Court observed (at page 230):
"A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community."
47. The following passage (at pages 235-36) from the judgment of the Supreme Court in that case with respect to the meaning of the expression "executive function" is instructive and requires to be reproduced:
SWP no.1265/2016 Page 41 of 133"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws."
48. The State undertakes the commercial functions in combination with the Governmental functionaries in a welfare State. The Governmental function must be authoritative. It must be able to impose a decision by or under the law with authority. The element of the authority is of a binding character. The rules and regulations are authoritative because these rules and regulations direct and control not only the exercise of the powers by the companies, corporations and bodies, but also all persons, who deal with these bodies.
49. In Rajasthan State Electricity Board, Jaipur v. Mohan & Ors.11, the Supreme Court said that an "authority" is a 11 (1967) 3 S.C.A. 377 SWP no.1265/2016 Page 42 of 133 public administrative agency or corporation having quasi- governmental powers and authorised to administer a revenue-producing public enterprise. The expression "other authorities" in Article 12 has been held by the Supreme Court in the said case (Rajasthan Electricity Board) to be wide enough to include within it, every authority created by a statute and functioning within territory of India, or under control of the Government of India. The Supreme Court, while referring to earlier decisions, further said that the expression "Other authorities" in Article 12, will include all constitutional or statutory authorities on whom powers are conferred by law. The State itself is envisaged under Article 298 as having the right to carry on trade and business. The State as defined in Article 12 is comprehended to include bodies created for purpose of promoting economic interests of people. The circumstance that statutory body is required to carry on some activities of the nature of trade or commerce does not indicate that the 'body' must be excluded from the scope of word "State." The concurring judgment in Rajasthan Electricity Board case (supra) provide that the Board was invested by statute with extensive powers of control over electricity undertakings.
50. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded SWP no.1265/2016 Page 43 of 133 from making a profit for the public benefit. Regard being had to Halsbury's Laws of England 3rd. Ed. Vol. 30 paragraph 1317 at p.682. The feature that the respondent corporation has been allowed to exercise the powers enabling it to trespass across the fundamental rights of a citizen is of great significance.
51. The Power Development Department, as iterated herein above as well, is one of the departments of the Jammu & Kashmir State Government responsible for all functions related to transmission and distribution of electric power in the State. However, the generation sector is being looked after by the J&K State Power Development Corporation - respondent corporation herein, which was carved out of PDD in the year 1995. Some of the principal and chief objectives of the respondent corporation is to plan, promote and organize an integrated and efficient development of electric power in all its aspects; investigation, research, design and preparation of preliminary feasibility and detailed project reports; construction, generation, operation and maintenance of power stations and sale of power thereof; construction of transmission lines and ancillary works for timely and co-coordinated supply of power. The respondent corporation in its Reply has also admitted that the respondent corporation is a government owned corporation and therefore the persons/personnel working in the respondent corporation cannot be differently treated.
SWP no.1265/2016 Page 44 of 13352. In Sukhdev Singh v. Bhagat Ram12, Mathew, J. stated that even the big industrial houses and the big trade unions would come in the purview of the State. While saying so, the Courts did not lose sight of difference between the State activity and individual activity. The Supreme Court took into consideration the fact that new rights in the citizens have been created and if any such right is violated, they must have access to the justice, which is a human right. There is an ongoing effect of the globalization and/or opening up of the markets by the reason of the liberalization policy of the Government. "Other authorities", among others, would be there, which, inter alia, function within the territory of India / State and the same need not necessarily be the Government of India, the Parliament of India, the Government of each of the States, which constitute the Union of India or the legislation of the States. Article 12 must receive a purposive interpretation, as by reason of Part III of the Constitution a charter of the liberties against the oppression and the arbitrariness of all kinds of the repositories of the power, have been conferred the object being to limit and control the power wherever it is found. A 'body', exercising the significant functions of the "public importance", would be an authority in respect of these functions. In those respects, it would be the same as is the executive government, established under the 12 (1975) 1 SCC 421 SWP no.1265/2016 Page 45 of 133 Constitution and the establishments of the organizations funded or controlled by the Government.
53. The development of the law in this field is well-known. At one point of time, the companies, the societies, etcetera, registered under the Indian Companies Act and the Societies Registration Act, were treated as the separate corporate entities, being governed by its own rules and regulations and, therefore, held not to be the 'States', albeit they were virtually running as the departments of Government. However, the situation has completely changed. The 'statutory authorities' and the 'local bodies' were held to be the 'States' in Rajasthan State Electricity Board, Jaipur case (supra). The Courts, however, did not stop there and newer and newer principles were evolved, as a result whereof the different categories of the 'bodies' came to be held as 'the State'.
54. Mathew, J. in his concurring, but a separate judgment, raised a question as to for whose benefit the Corporations were carrying on the business and in answering the same, came to the conclusion that the respondents therein were the 'States' within the meaning of the Article 12 of the Constitution of India. It was observed that even the big companies and the trade unions would answer the said description as they exercise the enormous powers. The same is true about the case in hand. The respondent corporation has been given enormous powers to use and SWP no.1265/2016 Page 46 of 133 utilise the resources of the J&K State. The respondent corporation is to generate and supply power, which per se is an enormous task and authority. The activities that are attributed to respondent corporation and the benefits derived therefrom, are not for individual(s), but for public. In that view of the matter the employees/personnel working in the respondent corporation are to be treated equally with the other corporations/organisations of the State and are to be given the same and similar benefits as is/are being vouchsafed to the employees working in the corporations/organisation/ departments of the State.
55. In UP State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey & Ors.13, the land development bank was held to be a State. The Supreme Court, upon analysing various provisions of Act and the rules framed thereunder, observed:
"It is not necessary for us to quote various other sections and rules but all these provisions unmistakably show that the affairs of the appellant are controlled by the State Government though it functions as a cooperative society and it is certainly an extended arm of the State and thus an instrumentality of the State or authority as mentioned under Article 12 of the Constitution."
Insofar as the case in hand is concerned, the respondent corporation has been given the authority to plan, promote and organize an integrated and efficient development of electric power in all its aspects; investigation, research, design and preparation of 13 AIR 1999 SC 753 SWP no.1265/2016 Page 47 of 133 preliminary feasibility and detailed project reports; construction, generation, operation and maintenance of power stations and sale of power thereof; construction of transmission lines and ancillary works for timely and co- coordinated supply of power. The activities of the respondent corporation are, therefore, not less than a 'State' itself.
56. Madon, J. in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another14 questioned:
"Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak?
It was opined:
"The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said: 'When I hear any man talk of an unaltelrable law, I am convinced that he is an unalterable fool." The law must, therefore, in a changing society march in tune with the changed ideas and ideologies"14
(1986) 3 SCC 156 SWP no.1265/2016 Page 48 of 133
57. The Constitutions have to evolve the mode for the welfare of their citizens. The flexibility is the hallmark of our Constitution. The growth of the Constitution shall be organic, the rate of change glacial. Regard being had to R. Stevens, the English Judges: Their Role in the Changing Constitution (Oxford 2002), p. xiii) [Quoted by Lord Woolf in 'The Rule of Law and a Change in the Constitution, 2004 Cambridge Law Journal 317]. A school would be a 'State' if it is granted financial aid, has been so said in Jiby P. Chacko v. Mediciti School of Nursing, Ghanpur, Ranga Reddy District and Anr.15.
58. An association, performing the function of the Housing Board, would be performing a public function and would be bound to comply with the Human Rights Act, 1998. Reliance may be had to Poplar Housing and Regeneration Community Association Ltd. v. Donoghue16. A school can be run by a private body without any State patronage. It is permissible in law because a citizen has a fundamental right to do so as his occupation in terms of Articles 19(1)(g) and 26. But once a school receives the State patronage, its activities would be the State activities and thus would be subject to the judicial review. Even otherwise, it is subjected to certain restrictions as regards its right to spend its money out of the profit earned. These views are borne out from T. M. A. Pai Foundation and Others v. State 15 2002 (2) ALD 827 16 [2002] Q.B. 48] SWP no.1265/2016 Page 49 of 133 of Karnataka and Others17 and Islamic Academy of Education and Another v. State of Karnataka and Others18.
59. The concept of the 'public law' function is yet to be crystallised. Concededly, however, the power of the judicial review can be exercised by this Court under Article 226 of the Constitution of India, only in a case, where the dispute involves a public law element as contradistinguished from a private law dispute, as has been stated and observed in Dwarka Prasad Agarwal (D) by LRs. and another v. B.D. Agarwal and others19. The general view, however, is that whenever a State or an instrumentality of a State is involved, it will be regarded as an issue within the meaning of the 'public law' but where the individuals are at loggerheads, the remedy therefor has to be resorted to in the private law field. The situation, however, changes with the advancement of the State function, particularly when it enters in the fields of the commerce, industry and the business, as a result whereof either the private bodies take up the public functions and the duties, or they are allowed to do so. The distinction has narrowed down but again concededly such a distinction still exists. Drawing an inspiration from the decisions, as discussed above, it may be safely inferred that when the essential governmental functions were placed or allowed to be performed by the 17 (2002) 8 SCC 481 18 (2003) 6 SCC 697 19 (2003) 6 SCC 230 SWP no.1265/2016 Page 50 of 133 private body, they must be held to have undertaken the 'public duty' or the 'public functions'. The same is true as to the respondent corporation herein.
60. When the State "merely" authorizes a given "private"
action, imagine a green light at a street corner, authorizing the pedestrians to cross if they wish that action cannot automatically become one taken under the "state authority" in any sense that makes the Constitution applicable. Which authorizations have, that the Constitution triggering the effect, will necessarily turn on the character of the decision-making responsibility thereby placed or left in the private hands. However, described, there must exist a category of the responsibilities regarded at any given time as so the "public" or the "governmental" that their discharge by the private persons, pursuant to the State authorization even though not necessarily in accord with the State direction, is subject to the federal constitutional norms that would apply to the public officials discharging those/same responsibilities. For example, deciding to cross the street when a police officer says you may, is not such a "public function" but authoritatively deciding who is free to cross and who must stop, is a "public function", whether or not the person entrusted under the State law to perform that function wears a police uniform and is paid a salary from the State revenues or wears a civilian garb and serves as a volunteer crossing guard. Performance of a public function in the context of the SWP no.1265/2016 Page 51 of 133 Constitution of India, would be to allow an entity to perform the function as an authority within the meaning of Article 12, which makes it subject to the constitutional discipline of the fundamental rights.
61. It may not be out of place to mention here that the Government, representing executive authority of the State, does act through the instrumentality or the agency of the natural persons or it employs the instrumentality or the agency of certain persons to carry out its functions. In the early days, when the Government had limited functions, it did operate effectively through the natural persons, constituting its civil service and they were found adequate to discharge the governmental functions, which were of the traditional vintage. But as the tasks of the Government burgeoned the advent of the welfare State, it began to be increasingly felt that the framework of the civil service was not sufficient to handle the new tasks, which were often of the specialised and highly technical character. The inadequacy of the civil service to deal with these new problems, came to be thought of and it became necessary to forge a new instrumentality or the administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation(s), body(ies), authority(ies) came into being as the third arm of the Government. As early as in 1819, the Supreme Court of SWP no.1265/2016 Page 52 of 133 the United States in Mac Cullough v. Maryland20, held that the Congress has power to charter the corporations as incidental to or in aid of the governmental functions and, as pointed out by Mathew, J., in Sukhdev Singh's case (supra), such federal corporations would ex hypothesi be agencies of the Government. In Great Britain too, the policy of the public administration through the separate corporations and the bodies was gradually evolved and the conduct of the basic industries through the giant corporations and the companies, has now become a permanent feature of the public life. So far as India is concerned, the genesis of emergence of the corporations and the companies as the instrumentalities or the agencies of the Government, is to be found in the Government of India Resolution on Industrial Policy dated 6th April, 1948, where it was stated, inter alia, that the "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this". It was in pursuance of the policy envisaged and the subsequent resolutions on the Industrial Policy that the corporations were created by the Government for setting up and management of the public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by the Government departmentally through its service 20 4 Wheat 315 (1819) SWP no.1265/2016 Page 53 of 133 personnel, but the instrumentality or agency of the corporations, authorities and companies, was resorted to in these cases, given the nature of the task to be performed. The corporations, the companies and the authorities, acting as the instrumentality or the agency of the Government would obviously be subject to the same limitations in the field of the constitutional and the administrative law as the Government itself, though in the eye of the law, they would be distinct and the independent legal entities. If the Government, acting through its officers, is subject to the certain constitutional and the public law limitations, it must follow a fortiori that the Government, acting through the instrumentality or the agency or the corporations, the companies or the bodies, should equally be subject to the same limitations. But the question is how to determine whether a corporation, company or a body, is acting as instrumentality or agency of the Government. It is a question not entirely free from difficulty.
62. A corporation or company may be created in one or two ways. It may be either established by statute or incorporated under a law, such as the Companies Act or Societies Registration Act. Where a corporation is wholly controlled by the Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of the Government. But ordinarily where a SWP no.1265/2016 Page 54 of 133 corporation is established by the statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by the Government in respect of the policy matter. So also, a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of the Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of the direct control exercised by the Government and, if so, what should be the nature of such control? Should the functions which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature or the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government. But, as is quite often the case, a corporation, established by the statute, may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by the Government, though this consideration also may not be determinative, because even while the directors are appointed by the Government, SWP no.1265/2016 Page 55 of 133 they may be completely free from governmental control in discharge of their functions. What then are the tests to determine whether a corporation established by a statute or incorporated under law is an instrumentality or agency of the Government? It is not possible to formulate an all- inclusive or exhaustive test, which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of the corporations or the companies into those which are the instrumentalities or the agencies of the Government and those which are not.
63. The analogy of the concept of the State action as developed in the United States may not, however, be altogether out of place while considering this question. The decisions of the courts in the United States, seem to suggest that a private agency, if supported by extraordinary assistance given by the State, may be subject to the same constitutional limitations as the State. Indubitably, it may be pointed out that the State's general common law and the statutory structure under which its people carry on their private affairs, own the property and the contract, each enjoying equality in terms of the legal capacity, is not such State assistance as would transform the private conduct into the State action. However, if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant SWP no.1265/2016 Page 56 of 133 circumstance supporting an inference that the corporation or the company is an instrumentality or agency of the Government. The leading case on the subject in the United States is Kerr v. Eneck Pratt Free Library21. The Library system in question in this case was established by the private donation in 1882, but by 1944, the 99 percent of the system's budget was supplied by the city, title to the library property was held by the city, the employees there paid by the city payroll officer and a high degree of budget control was exercised or available to the city government. On these facts the Court of Appeal required the trustees managing the system to abandon a discriminatory admission policy for its library training courses. It will be seen that in this case there was considerable amount of the State control of the library system in addition to the extensive financial assistance and it is difficult to say whether, in the absence of such control it would have been possible to say that the action of the trustees constituted the State action. Thomas P. Lewis has expressed the opinion in his article on "The meaning of State Action" (60 Colombia Law Review 1083) that in this case "it is extremely unlikely that absence of public control would have changed the result as long as 99% of the budget of a nominally private institution was provided by government. Such extensive governmental support should be sufficient identification with the Government to subject the institution to the provisions of 21 149 F 2d 212 SWP no.1265/2016 Page 57 of 133 the Fourteenth Amendment". It may, therefore, be possible to say that where the financial assistance of the State is so much as to meet the almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. But where the financial assistance is not so extensive, it may not by itself, without anything more render the corporation an instrumentality or agency of the government, for there are many private institutions, which are in receipt of the financial assistance from the State and merely on that account, they cannot be classified as the State agencies. Equally a mere finding of some control by the State would not be determinative of the question "since a State has considerable measure of control under its police power over all types of business operations". But "a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characteristic an operation as State action" as observed in Sukhdev Singh's case (supra). So also, the existence of the deep and pervasive State control may afford an indication that the corporation/company is a State agency or instrumentality. It may also be a relevant factor to consider whether the company enjoys monopoly status, which is the State conferred or the State protected. There can be little doubt that the State conferred or the State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation's ties to the State, as SWP no.1265/2016 Page 58 of 133 are the observations of Douglas, J., in Jackson v. Metropolitan Edison Co22.
64. Another factor that can as well be regarded as having a bearing on this issue and it is whether the operation of the corporation, the company, the body or the entity is an important public function. It has been held in a number of cases in the United States that the concept of the private action must yield to a conception of the State action, where the public functions are being performed, as said by Arthur S. Miller ["The Constitutional Law of the Security State"
(10 Stanford Law Review 620 at 664)]. It was pointed out by Douglas, J., in Evans v. Newton23, that "when private individuals or groups are endowed by the State with powers or functions, governmental in nature, they become agencies or instrumentalities of the State". Same is apropos in the present case as well. The respondent corporation is to plan, promote and organize an integrated and efficient development of electric power in all its aspects; investigation, research, design and preparation of preliminary feasibility and detailed project reports; construction, generation, operation and maintenance of power stations and sale of power thereof; construction of transmission lines and ancillary works for timely and co- coordinated supply of power. Having said so, the respondent corporation has been endowed by the State 22 419 US 345 : 42 L Ed 2d 477 23 382 US 296 : 15 L Ed 2d 373 SWP no.1265/2016 Page 59 of 133 Government with the powers and the functions, which, in essence, are governmental in nature, therefore, the respondent corporation becomes an agency or for that matter instrumentality of the State.
65. Of course, with the growth of the welfare State, it is very difficult to define what functions are governmental and what are not, because, as pointed out by Villmer, L.J. in [Pfizer v. Ministry of Health24, there has been since mid- Victorian times, "a revolution in political thought and a totally different conception prevails today as to what is and what is not within the functions of Government". Douglas, J., also observed to the same effect in New York v. United States25: "A State's project is as much a legitimate governmental activity whether it is traditional or akin to private enterprise, or conducted for profit". And as observed is in Cf. Helverillg v. Gerhardt26 : A State may deem it as essential to its economy that it owns and operates a railroad, a mill, or an irrigation system as it does to own and operate bridges, streetlights, or a sewage disposal plant. What might have been viewed in the earlier days as an improvident or even dangerous extension of the State activities, may today be deemed indispensable. It may be noted that besides the so-called traditional functions, the modern State operates a multitude of the public enterprises and discharges a host of other public 24 (1964) 1 Ch 614, 641 : (1963) 1 All ER 590 (affirmed in 1965) AC 512] 25 326 U.S. 572 26 304 U.S. 405, 426, 427 SWP no.1265/2016 Page 60 of 133 functions. If the functions of the corporation, the company or the body are of the public importance and closely related to the governmental functions, it would be a relevant factor in classifying the corporation, the company or the body as an instrumentality or agency of the Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram (supra) where learned Judge said that "institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions. This demands the delineation of a theory which requires government to provide all persons with all fundamentals of life and the determinations of aspects which are fundamental. The state today has an affirmative duty of seeing that all essentials of life are made available to all persons. The task of the state today is to make possible the achievement of a Good life both by removing obstacles in the path of such achievements and in assisting individual in realizing his ideal of self-perfection". In the present case, the respondent corporation is engaged in the matters of the high public interest and/or performing the public functions, which are by virtue of the nature of the functions being performed by the government departments. It is germane to point out that the State today has an affirmative duty of seeing that all the essentials of the life are made available SWP no.1265/2016 Page 61 of 133 to its citizens. The task of the State today is to make possible achievement of a good life, both by removing obstacles in the path of such achievements and in assisting the individual in realizing his ideal of self-perfection. The State needs power, to run the state machinery, banks, hospitals, schools, industries etcetera. The power (electricity), it may not be out of place to mention here, can very well be said, has catapult to pinnacle, where one cannot imagine the life without electricity. Our life today is contingent on the electricity. The household utensils, tools, gadgets, appliances, reliant on electricity, have made our life easier. Minus electricity, our life is Stone Age. In such circumstances, the major and main focus of the State is to provide more and more electricity to its citizens and for that aim and objective, the respondent corporation has been established. Therefore, the respondent corporation is discharging the important public importance function of the State.
66. All things considered, one of the principal tests applied by the United States Supreme Court in Marsh v. Alabama27 for holding that a corporation which owned a Company town, was subject to the same constitutional limitations as the State. This case involved the prosecution of Marsh, a member of the Johevah's witnesses' sect, under a state trespass statute for refusing to leave the side walk of the company town where she was distributing her religious 27 326 U.S. 501: 19 L Ed. 265 (1946) SWP no.1265/2016 Page 62 of 133 pamphlets. She was fined $ 5 and aggrieved by her conviction she carried the matter right up to the Supreme Court contending successfully that by reason of the action of the corporation her religious liberty had been denied. The Supreme Court held that the administration of the private property such as a town, though privately carried on, was, nevertheless, in the nature of a public function and that the private rights of the corporation must, therefore, be exercised within the constitutional limitations and the conviction for trespass was reversed. The dominant theme of the majority opinion written by Mr Justice Black was that the property of the corporation used as a town not recognisably different from other towns, lost its identification as purely private property. It was said that a town may be privately owned and managed but that does not necessarily allow the corporation to treat it as if it was wholly in private sector and the exercise of constitutionally protected rights on public, street of a company town could not be denied by the owner. "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. . . Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to SWP no.1265/2016 Page 63 of 133 state regulation". Mr Justice Frankfurter, concurring, reduced the case to simpler terms. He found in the realm of the civil liberties the need to treat a town, private or not, as a town. The function exercised by the corporation was in the nature of the municipal function and it was, therefore, subject to the constitutional limitations placed upon the State action.
67. The same test of public or governmental character of the function was applied by the Supreme Court of the United States in Evans v. Newton (supra) and Smith v. Allwigh28. The decisions show that even this test of the public or the governmental character of the function is not easy of the application and does not invariably lead to the correct inference because the range of the governmental activities is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation/ company, which is otherwise a private entity, would be an instrumentality or agency of the Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non- governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept, and Herbert Spencer's social statics, has no place.
285 321 US 649 SWP no.1265/2016 Page 64 of 133 The contrast is rather between the governmental activities which are private and the private activities which are governmental. But the public nature of the function, if impregnated with the governmental character or "tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of the Government. In distinction from others, if a department of the Government is transferred to a corporation, it would be a strong factor supportive of this inference. It will, thus, be seen that there are several factors which are to be considered in determining whether a corporation, company or a body is an agency or instrumentality of the Government. Some of these factors which may be summarised are: whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance; whether there is any other form of the assistance, given by the State; and if so whether it is of the usual kind or it is extraordinary; whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control; whether a body enjoys the State conferred or the State protected monopoly status and whether the functions carried out by the company or corporation are the public functions closely related to the governmental functions. This particularisation of the relevant factors is, however, not exhaustive and by its very nature it cannot be, because with increasing assumption of SWP no.1265/2016 Page 65 of 133 the new tasks, growing complexities of the management and the administration and the necessity of the continuing adjustment in relations between the company, the corporation or a body and the Government calling for flexibility, adapt ability and innovative skills, it is not possible to make an exhaustive enumeration of the tests, which would invariably and in all cases provide an unfailing answer to the question whether a corporation, organisation, company or a body is a governmental instrumentality or agency. Moreover, even amongst these factors, which have been described, no one single factor will yield a satisfactory answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case. "The dispositive question in any stale action case," as pointed out by Douglas, J., in Jackson v. Metropolitan Edison Company (supra) "is not whether any single fact or relationship presents a sufficient degree of state involvement, but rather whether the aggregate of all relevant factors compels a finding of state responsibility". It is not enough to examine seriatim each of the factors upon which a body, company or corporation is claimed to be an instrumentality or agency of the Government and to dismiss each individually as being insufficient to support a finding of that effect. It is the aggregate or cumulative effect of all the relevant factors that is controlling. Now, SWP no.1265/2016 Page 66 of 133 obviously where a company, organisation, or a body is an instrumentality or agency of the Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as the Government.
68. The rule inhibiting arbitrary action by the Government which has been discussed above must apply equally where such a body, corporation or company is dealing with the public, whether by way of giving the jobs or entering into the contracts or otherwise, and it cannot act arbitrarily and enter into the relationship with any person it likes at its sweet will, but its action must be in conformity with some principle, which meets the test of reason and relevance. Now this rule, flowing as it does from Article 14, applies to every State action and since the "State" is defined in Article 12 of the Constitution, to include not only the Government of India and the Government of each of the States, but also "all local or other authorities within the territory of India or under the control of the Government of India", it must apply to action of "other authorities" and they must be held subject to the same constitutional limitation as the Government. But the question arises what are the "other authorities" contemplated by Article 12 of the Constitution of India, which fall within the definition of 'State'? On this question considerable light is thrown by the Supreme Court in Rajasthan Electricity Board v. Mohan Lal29. In the said 29 (1967) 3 SCR 377: AIR SC 1857 SWP no.1265/2016 Page 67 of 133 case. the Supreme Court considered the question, whether Rajasthan Electricity Board was an 'authority' within the meaning of the expression "other authorities" in Article 12 of the Constitution. Bhargava, J., delivering the judgment of the majority pointed out that the expression "other authorities", in Article 12 of the Constitution of India, would include all the constitutional and the statutory authorities on whom the powers are conferred by the law. The learned Judge also said that if a body of persons has authority to issue the directions, disobedience whereof would be punishable as a criminal offence, that would be an indication that that the authority is the 'State'. Shah, J., who delivered a separate judgment, agreeing with the conclusion reached by the majority, preferred to give a slightly different meaning to the expression "other authorities". He said that the authorities, constitutional or statutory, would fall within the expression "other authorities" only if they are invested with the sovereign power of the State, namely, the power to make the rules and regulations, which have the force of the law. The ratio of this decision may, thus, be stated to be that a constitutional or statutory authority would be within the meaning of the expression "other authorities", if it has been invested with the statutory power to issue he binding directions to the third parties, the disobedience of which would entail the penal consequence or it has the sovereign power to make the rules and regulations having the force SWP no.1265/2016 Page 68 of 133 of law. This test was followed by Ray, C.J., in Sukhdev v. Bhagat Ram (supra). Mathew, J., in the same case, propounded a broader test, namely, whether the statutory corporation or the other body or the authority, claimed to fall within the definition of the State, is an instrumentality or agency of the Government: if it is, it would fall within the meaning of the expression 'other authorities' and would be the 'State'.
69. The most significant expression used in Article 12 is "other authorities". This expression is not defined in the Constitution. The interpretation of the term "other authorities" has caused a good deal of predicament, and the judicial opinion has undergone changes over time. Today's government performs a large number of the functions because of the prevailing philosophy of a social welfare state. The government acts through the natural persons as well as the juridical persons. Some functions are discharged through the traditional governmental departments and officials while some functions are discharged through the autonomous bodies existing outside the departmental structure, such as the companies, the corporations, etcetera. While the government, acting departmentally, or through the officials, undoubtedly, falls within the definition of 'State" under the Article 12, doubts had been cast qua the character of the autonomous bodies. Whether they could be regarded as 'authorities' under Article 12 of the Constitution and, thus, be subject to the SWP no.1265/2016 Page 69 of 133 Fundamental Rights. An autonomous body may be a statutory body, i.e. a body set up directly by a statute, or it may be a non-statutory body, i.e. body registered under the general law, such as the Companies Act, the Societies Registration Act, or a State Cooperative Societies Act, etcetera. The questions have been raised whether such bodies may be included within the coverage of the Article
12. For this purpose, the Supreme Court has developed the concept of an "instrumentality" of the State. Any 'body' which can be regarded as an "instrumentality" of the State, falls under Article 12. The reason for adopting such a broad view of the Article 12 is that the Constitution should, whenever possible, be construed as to apply to the arbitrary application of the power against the individuals by the centres or power. The emerging principle appears to be that a public corporation being a creation of the State is subject to the Constitutional limitation as the State itself. The governing power, wherever located, must be subject to the fundamental constitutional limitations. The question was considered more thoroughly in Ramana D. Shetty v. International Airport Authority30. The International Airport Authority, a statutory body, was held to be an 'authority'. The Supreme Court also developed the general proposition that an 'instrumentality' or 'agency' of the government would be regarded as an 'authority' or 'State' within Article 12 and laid down some tests to determine 30 (1979) 3 SCC 489 SWP no.1265/2016 Page 70 of 133 whether a body could be regarded as an instrumentality or not. Where a corporation is an instrumentality or agency of the government, it would be subject to the same constitutional or public law limitation as the government itself. In this case, the Court was enforcing the mandate of Article 14 against the corporation. In that view of the matter, the respondent department, in the present case as well, is to be subjected to the same constitutional or the public law limitation as the government itself.
70. In Som Prakash v. Union of India31, the company was held to fall under Article 12. The Court emphasized that the true test for the purpose whether a body was an 'authority' or not was not whether it was formed by a statute, or under a statue, but it was "functional". In the instant case, the key factor was "the brooding presence of the state behind the operations of the body, statutory or other". In this case, the body was semi-statutory and semi-non-statutory. It was non-statutory in origin, as it was registered; it also was recognised by the Act in question and, thus had some "statutory flavour" in its operation and functions. The question regarding the status of a non-statutory body was finally clinched in Ajay Hasia v. Khalid Mujib32, where a society registered under the Societies Registration Act, running the regional engineering college, sponsored, supervised and financially supported by the Government, 31 (1981) 1 SCC 449 32 (1981) 1 SCC 722 SWP no.1265/2016 Page 71 of 133 was held to be an 'authority'. Money to run the college was provided by the State and the Central Governments. The State Government could review the functioning of the college and issue the suitable instructions if considered necessary. Nominees of the State and Central Government were members of the society including its Chairman. The Supreme Court ruled that where a corporation is an instrumentality or agency of the government, it must be held to be an authority under Article 12 of the Constitution of India. The concept of the instrumentality or the agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society. Thus, a registered society was held to be an 'authority' for the purposes of Article 12. Ajay Hasia has initiated a new judicial trend, viz. that of expanding the significance of the term "authority". The Supreme Court in the said case laid down the following tests to adjudge whether a body is an instrumentality of the government or not:
a) If the entire share capital of the corporation is held by government it would go a long way towards indicating that the corporation is an instrumentality or agency of the government.
b) Where the financial assistance of the State is so much as to make almost entire expenditure of the corporation, it would assume indication of the corporation being impregnated with governmental character.SWP no.1265/2016 Page 72 of 133
c) It may also be a relevant factor whether the Corporation enjoys monopoly status which is State conferred or State protected.
d) Existence of deep and pervasive State control may afford an indication that the Corporation is an agency or instrumentality.
e) If the functions of the corporation are of public importance and closely related government functions it would be a relevant factor in classifying the corporation as an instrumentality or agency of the Government.
71. The important question is not how the juristic person is born, but why has it been into existence? It does not matter what is the structure of the body in question: it may be statutory or non-statutory; it may be set up by, or under, an Act of the Legislature or even administratively. It does not matter whether the body in question has been set up initially by the government or by the private enterprise. It does not matter what functions the body does discharge; it may be the government, semi government, educational, commercial, banking, social service. The Supreme Court has pointed out that even if it may be assumed that one or the other test as provided in the case of Ajay Hasia may be attracted, that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of the public nature or State. In view of the several views and tested suggested by the Supreme Court SWP no.1265/2016 Page 73 of 133 it is not possible to make a close ended category of bodies which would be considered to be a State within the meaning of Article 12. The question in each case will have to be considered on the basis of the facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by, or under the control of the Government. Such control must be particularly to the body in question and must be pervasive.
72. The Courts have been led to take expansive view of Article 12 because of the feeling that if the instrumentalities of the government are not subject to the same legal discipline as the government itself because of the plea that they were distinct and autonomous legal entities, then the government would be tempted to adopt the stratagem of setting up such administrative structures on a big scale in order to evade the discipline and constraints of the Fundamental Rights, thus, eroding and negating their efficacy to a very large extent. In this process, the judicial control over these bodies would be very much weakened.
73. The judicial anvil was in Mysore Paper Mills Ltd. vs. The Mysore Paper Mills Officers Association JT 2002 (1) SC 61, which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 up to the present time. It held that a company substantially financed and financially SWP no.1265/2016 Page 74 of 133 controlled by the Government, managed by a Board of Directors nominated and removable at the instance of the Government and carrying on important functions of public interest under the control of the Government is 'an authority' within the meaning of Art.12.
74. The Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology33, by majority view, agreed to the statement of the law in Rajasthan Electricity Board case (supra), that "The State, as defined in Art.12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people". What has been observed in the case of Pradeep Kumar Biswas, by majority view, is:
"The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
xxxxxx These objects which have been incorporated in the Memorandum of Association of CSIR manifestly demonstrate that CSIR was set up in the national interest to further the economic welfare of the society by fostering planned industrial development in the country. That such a function is fundamental to the governance of the country has already been held by a Constitution Bench of this Court as far back as in 33 (2002) 5 SCC 111 SWP no.1265/2016 Page 75 of 133 1967 in Rajasthan Electricity Board v. Mohan Lal (Supra) where it was said:
"The State, as defined in Art.12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people".
We are in respectful agreement with this statement of the law."
75. The term "authority" used in Article 226, must receive a liberal meaning unlike the term in Article 12. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "any person or authority"
used in Article 226 are, therefore, not to be confined only to the statutory authorities and the instrumentalities of the State. They may cover any other person or body performing the public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in light of the positive obligation owed by the person or the authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. In Dr. Janet Jeyapaul v. SRM University and anr34, while discussing Article 12 and 226 of the Constitution of India, the Supreme Court has observed and opined:
"(h) Against the said order, respondent No.1 herein filed Writ Appeal No. 932 of 2013 before the High Court. By impugned judgment dated 04.07.2013, the Division Bench of the High Court allowed the appeal. It was held that the writ petition filed by the appellant against respondent No.1 was not 34 (AIR) 2016 SC 73 SWP no.1265/2016 Page 76 of 133 maintainable as according to the Division Bench, respondent No.1 is neither a State nor an authority within the meaning of Article 12 of the Constitution of India and hence it cannot be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution to examine the legality and correctness of the dismissal order. The Division Bench, therefore, did not examine the merits of the case made out by the appellant successfully before the Single Judge. The Division Bench, however, granted liberty to the appellant to approach the Tribunal for ventilating of her grievance on merits.
xxxxx
7. Submissions of Mr. Harish Salve were many fold. According to him, while deciding the question as to whether the writ lies under Article 226 of the Constitution of India against any person, juristic body, organization, authority etc., the test is to examine in the first instance the object and purpose for which such body/authority/organization is formed so also the activity which it undertakes to fulfill the said object/purpose.
8. Pointing out from various well known English commentaries such as De Smith's Judicial Review, 7th Edition, H.W.R.Wade and C.F. Forsyth Administrative law, 10th Edition, Michael J. Beloff in his article Pitch, Pool, Rink,......Court? Judicial Review in the Sporting World, 1989 Public Law 95, English decisions in Breen vs. A.E.U. (1971) 2 QB 175, R. vs. Panel on Take-overs and Mergers, ex parte Datafin Plc and another (Norton Opax Plc and another intervening) (1987) 1 All ER 564, E.S. Evans vs. Charles E. Newton 382 US 296 (1966) and of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. vs. V.R. Rudani & Ors., (1989) 2 SCC 691 and Zee Telefilms Ltd. vs. Union of India (2005) 4 SCC 649, Mr. Harish Salve submitted that perusal of these authorities/decisions would go to show that there has been a consistent view of all the learned authors and the Courts all over the world including in India that the approach of the Court while deciding such issue is always to test as to whether the concerned body is formed for discharging any "Public function" or "Public duty" and if so, whether it is actually engaged in any public function or/and performing any such duty.
9. According to learned counsel, if the aforesaid twin test is found present in any case then such person/body/ organization/authority, as the case may be, would be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution.
10. Learned senior counsel elaborated his submission by pointing out that the expression "any person or authority" used in Article 226 are not confined only to statutory authorities SWP no.1265/2016 Page 77 of 133 and instrumentalities of the State but may in appropriate case include any other person or body performing "public function/duty". Learned counsel urged that emphasis is, therefore, always on activity undertaken and the nature of the duty imposed on such authority to perform and not the form of such authority. According to Mr. Harish Salve, once it is proved that the activity undertaken by the authority has a public element then regardless of the form of such authority it would be subjected to the rigor of writ jurisdiction of Article 226 of the Constitution.
11. Learned counsel then urged that in the light of several decisions of this Court, one cannot now perhaps dispute that "imparting education to students at large" is a "public function" and, therefore, if any body or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
12. Learned counsel further pointed out that the case in hand clearly shows that respondent No. 1 - a juristic body is engaged in imparting education in higher studies and what is more significant is that respondent No. 1 is conferred with a status of a "Deemed University" by the Central Government under Section 3 of the UGC Act. These two factors, according to Mr. Harish Salve, would make respondent No. 1 amenable to writ jurisdiction of the High Court under Article 226 because it satisfies the twin test laid down for attracting the rigor of writ jurisdiction of the High Court.
xxxxx
14. Having heard learned counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by Mr. Harish Salve.
15. To examine the question urged, it is apposite to take note of what De Smith, a well-known treaty, on the subject "Judicial Review" has said on this question [See De Smith's Judicial Review, 7th Edition, page 127 (3-027) and page 135 (3-038)].
"AMENABILITY TEST BASED ON THE SOURCE OF POWER. The courts have adopted two complementary approaches to determining whether a function falls within the ambit of the supervisory jurisdiction. First, the court considers the legal source of power exercised by the impugned decision-maker. In identifying the "classes of case in which judicial review is available", the courts place considerable importance on the source of legal authority exercised by the defendant public authority. Secondly and additionally, where the "source SWP no.1265/2016 Page 78 of 133 of power" approach does not yield a clear or satisfactory outcome, the court may consider the characteristics of the function being performed. This has enabled the courts to extend the reach of the supervisory jurisdiction to some activities of non-statutory bodies (such as self- regulatory organizations). We begin by looking at the first approach, based on the source of power."
"JUDICIAL REVIEW OF PUBLIC FUNCTIONS The previous section considered susceptibility to judicial review based on the source of the power: statute or prerogative. The courts came to recognize that an approach based solely on the source of the public authority's power was too restrictive. Since 1987 they have developed an additional approach to determining susceptibility based on by the type of function performed by the decision-maker. The "public function" approach is, since 2000, reflected in the Civil Procedure Rules:
CPR.54.1(2)(a)(ii), defines a claim for judicial review as a claim to the lawfulness of "a decision, action or failure to act in relation to the exercise of a public function."
(Similar terminology is used in the Human Rights Act 1998, s. 6(3)(b) to define a public authority as "any person certain of whose functions are functions of a public nature", but detailed consideration of that provision is postponed until later). As we noted at the outset, the term "public" is usually a synonym for "governmental"."
16. The English Courts applied the aforesaid test in R. vs. Panel on Take-overs and Mergers, ex parte Datafin Plc and another (Norton Opax Plc and another intervening) (1987) 1 All ER 564, wherein Sir John Donaldson MR speaking for three-judge Bench of Court of Appeal (Civil Division), after examining the various case law on the subject, held as under:
"In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body's powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body's decisions......."
17. In Andi Mukta's case (supra), the question before this Court arose as to whether mandamus can be issued at the instance of an employee (teacher) against a Trust registered under Bombay Public Trust Act, 1950 which was running an educational institution (college). The main legal objection of SWP no.1265/2016 Page 79 of 133 the Trust while opposing the writ petition of their employee was that since the Trust is not a statutory body and hence it cannot be subjected to the writ jurisdiction of the High Court. The High Court accepted the writ petition and issued mandamus directing the Trust to make payments towards the employee's claims of salary, provident fund and other dues. The Trust (Management) appealed to this Court.
18. This Court examined the legal issue in detail. Justice K. Jagannatha Shetty speaking for the Bench agreed with the view taken by the High Court and held as under:
"11. Two questions, however, remain for consideration:
(i) The liability of the appellants to pay compensation under Ordinance 120-E and
(ii) The maintainability of the writ petition for mandamus as against the management of the college.........
12. The essence of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain, (1976) 2 SCC 58 and (b) Deepak Kumar Biswas v. Director of Public Instructions, (1987) 2 SCC 252. In the first of the two cases, the respondent institution was a Degree College managed by a registered cooperative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Cooperative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body.
SWP no.1265/2016 Page 80 of 13315. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."
19. This issue was again examined in great detail by the Constitution Bench in Zee Telefilms Ltd. & Anr. Vs. Union of SWP no.1265/2016 Page 81 of 133 India & Ors., (2005) 4 SCC 649 wherein the question which fell for consideration was whether the Board of Control for cricket in India (in short "BCCI") falls within the definition of "State" under Article 12 of the Constitution. This Court approved the ratio laid down in Andi Mukta's case (supra) but on facts of the case held, by majority, that the BCCI does not fall within the purview of the term State. This Court, however, laid down the principle of law in Paras 31 and 33 as under :
"31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.
33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226......................"
20. It is clear from reading of the ratio decidendi of judgment in Zee Telefilms Ltd. (supra) that firstly, it is held therein that the BCCI discharges public duties and secondly, an aggrieved party can, for this reason, seek a public law remedy against the BCCI under Article 226 of the Constitution of India.
21. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered view that the Division Bench of the High Court erred in holding that respondent No.1 is not subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution. In other words, it should have been held that respondent No.1 is subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution.
22. This we say for the reasons that firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function"
by way of imparting education. Thirdly, it is notified as a SWP no.1265/2016 Page 82 of 133 "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a "Deemed University", all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as "Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.
23. In the light of foregoing discussion, we cannot concur with the finding rendered by the Division Bench and accordingly while reversing the finding we hold that the appellant's writ petition under Article 226 of the Constitution against respondent No. 1 is maintainable." (emphasis supplied)
76. As recapitulated herein above, the Power Development Department (PDD) is one of the departments of the Jammu & Kashmir State Government responsible for all functions related to transmission and distribution of electric power in the State. However, the generation sector is being looked after by the J&K State Power Development Corporation (JKSPDC) - respondent corporation herein, which was carved out of PDD in the year 1995. Some of the principal and chief objectives of the respondent corporation is to plan, promote and organize an integrated and efficient development of electric power in all its aspects; investigation, research, design and preparation of preliminary feasibility and detailed project reports; construction, generation, operation and maintenance of power stations and sale of power thereof; construction of transmission lines and ancillary works for timely and co-
SWP no.1265/2016 Page 83 of 133coordinated supply of power. In addition to this, the composition of the Board of the Directors of the respondent corporation comprises of the Governor of the J&K State as Chairman; and Directors of the Board are, amongst others, Government Officials, viz. Chief Secretary of the J&K State Government, Financial Commissioner, Planning and Development Department; Commissioner/ Secretary to Government, Finance Department; Commissioner, Power Development Department. The respondent corporation in its Reply has also admitted that the respondent corporation is a government owned corporation.
77. The above aspects unquestionably divulge and reveal that not only is the respondent corporation a government owned company, but is a Government corporation, which is under the complete control and management of the J&K State Government, and therefore, the petitioners herein, who are employees of the respondent department, are entitled to all safeguards and benefits as are percolating from the Constitution.
78. Thus, it can be without any demur said that the respondent corporation is an Undertaking of Government of J&K. It has to undertake public importance project(s), where, obviously, public interest is involved. The respondent corporation has been created aiming at to plan, promote and organize an integrated and efficient development of electric power in all its aspects; investigation, research, design and preparation of preliminary feasibility and SWP no.1265/2016 Page 84 of 133 detailed project reports; construction, generation, operation and maintenance of power stations and sale of power thereof; construction of transmission lines and ancillary works for timely and co-coordinated supply of power. The activities of the respondent corporation, therefore, cannot be said to be carried by a private industry as if the respondent corporation is owned or controlled by an individual person or a commercial company, but carries the above activities in the capacity of being an agency or instrumentality of the State. In that view of the matter, respondent corporation is the voice and the hands of the State Government.
79. In such circumstances, being an undertaking of the Government of J&K, the respondent corporation is to generate and supply the power. In that view of the matter, as far as the provisions of the Article 12 of the Constitution, are concerned, the respondent corporation being the "instrumentality" of the State, the provisions of Article 12 of the Constitution of India are attracted, and for that reason, the writ petition under the Article 226 of the Constitution is maintainable. This aspect also gets support from the law laid down in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsa v. Smarak Trust and others35. The Supreme Court in the said case has held that the term "authority" used in the Article 35 AIR 1989 C 1607 SWP no.1265/2016 Page 85 of 133 226, in the context, must receive a liberal meaning unlike the term in Article 12. The Article 12 is relevant only for the purpose of the enforcement of the fundamental rights under Article 32. Article 226 confers the power on the High Courts to issue the writs for the enforcement of the fundamental rights as well as the non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to the statutory authorities and instrumentality of the State. They may cover any other person or body performing the public duty. The form of the body concerned is not very much relevant. Similarly, in Ramesh Ahluwalia v. State of Punjab & ors.36, it is held that the writ cannot be denied if a person or the authority concerned performs the public duty not necessarily imposed by the Statute. The technicalities should not come in the way of granting the relief. Reliance is also placed on the judgment of tbhe Supreme Court in the case of Zee Telefilms Ltd. & anr. v. Union of India & ors.37. It has been held that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. What is deducible and inferable from the above discussion and the judgements and decisions conversed, which exclusively relate to the action of the State, its 36 (2012) 12 SCC 331 37 (2005) 4 SCC 649 SWP no.1265/2016 Page 86 of 133 agencies and instrumentalities qua subject matter and not to private entities. And on the basis of said cited judgements, the respondent corporation defends, rationalizes and guards its decision, impugned in this writ petition. That being the case, the respondent corporation is amenable to writ jurisdiction of this Court.
80. This ships us to the next issue that has arisen for consideration in the present writ petition, that is 'equal pay for equal work', which needs a bird's eye view on the legal position declared by the Courts, on the underlying ingredients, which govern the principle of 'equal pay for equal work'.
81. In Randhir Singh v. Union of India (1982) 1 SCC 618, decided by a three-Judge Bench of the Supreme Court the petitioner was holding the post of Driver-Constable in the Delhi Police Force, under the Delhi Administration. The scale of pay of Driver-Constables, in case of non- matriculates was Rs.210- 270, and in case of matriculates was Rs.225-308. The scale of pay of the Drivers in the Railway Protection Force, at that juncture was Rs.260-400. The pay-scale of the Drivers in the non-secretariat offices in Delhi was, Rs.260-350 and of the Drivers employed in the secretariat offices in Delhi, was Rs.260-400. The pay- scale of the Drivers of the heavy vehicles in the Fire Brigade Department, and in the Department of the Lighthouse was Rs.330-480. The prayer of the petitioner SWP no.1265/2016 Page 87 of 133 was, that he should be placed in the scale of pay, as was extended to Drivers in other governmental organizations in Delhi. The instant prayer was based on the submission, that he was discharging the same duties as other Drivers. His contention was, that the duties of Drivers engaged by the Delhi Police Force, were more onerous than the Drivers in other departments. He based his claim on the logic, that there was no reason/justification, to assign different pay- scales to the Drivers, engaged in different departments of the Delhi Administration.
82. The Supreme Court on examining the above controversy, arrived at a conclusion that merely the fact that the concerned employees were engaged in different departments of the Government, was not by itself sufficient to justify different pay-scales. It was acknowledged, that although the persons holding the same rank/designation in different departments of the Government, may be discharging different duties, yet it was held, that if their powers, duties and responsibilities were identical, there was no justification for extending different pay scales to them, merely because they were engaged in different departments. Accordingly, it was declared that where all relevant considerations were the same, persons holding identical posts ought not to be treated differently, in the matter of pay. If the officers in the same rank perform dissimilar functions and exercise different powers, duties and responsibilities, such officers could not complain, that SWP no.1265/2016 Page 88 of 133 they had been placed in a dissimilar pay-scale, even though the nomenclature and designation of the posts, was the same. It was concluded, that the principle of 'equal pay for equal work', which meant equal pay for everyone irrespective of sex, was deducible from the Preamble and Articles 14, 16 and 39(d) of the Constitution. The principle of 'equal pay for equal work', was held to be applicable to cases of unequal scales of pay, based on no classification or irrational classification, though both sets of employees, engaged on temporary and regular basis, respectively, performed identical duties and responsibilities. The Supreme Court arrived at the conclusion, that there could not be the slightest doubt that Driver-Constables engaged in the Delhi Police Force, performed the same functions and duties, as other Drivers in the services of the Delhi Administration and the Central Government. Even though he belonged to a different department, the petitioner was held as entitled to the pay-scale of Rs.260-400.
83. In D. S. Nakara v. Union of India, (1983) 1 SCC 304, decided by a five-Judge Constitution Bench of the Supreme Court, the following observations were recorded therein:
"32. Having succinctly focused our attention on the conspectus of elements and incidents of pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38 (1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice - social, SWP no.1265/2016 Page 89 of 133 economic and political shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Art. 39 (d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India & ors. (1982) 1 SCC 618. Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speaking for the Court observed as under: (SCC p.619, para 1) "Now, thanks to the rising social and political consciousness and the expectations aroused as a consequence and the forward looking posture of this Court, the under-privileged also are clamouring for the rights and are seeking the intervention of the court with touching faith and confidence in the court. The Judges of the court have a duty to redeem their Constitutional oath and do justice no less to the pavement dweller than to the guest of the five-star hotel."
84. In Federation of All India Customs and Central Excise Stenographers (Recognized) v. Union of India (1988) 3 SCC 91, decided by a two-Judge bench, the Supreme Court, while adjudicating upon the controversy, arrived at the conclusion, that the differentiation of the pay-scale was not sought to be justified on the basis of the functional work discharged by the petitioners and their counterparts in the secretariat, but on the dissimilarity of their responsibility, confidentiality and the relationship with the public etc. It was accordingly concluded, that the same amount of physical work, could entail different quality of work, some more sensitive, some requiring more tact, some less. It was therefore held, that the principle of 'equal pay for equal work' could not be translated into a mathematical formula. Interference in a claim as the one projected by the petitioners at the hands of a Court, would not be possible SWP no.1265/2016 Page 90 of 133 unless it could be demonstrated, that either the differentiation in the pay-scale was irrational, or based on no basis, or arrived at mala fide, either in law or on fact. In the light of the stance adopted by the respondents, it was held that it was not possible to say, that the differentiation of pay in the present controversy, was not based on a rational nexus.
85. In State of U. P. v. J. P. Chaurasia, (1989) 1 SCC 121, the Supreme Court, while adjudicating upon the controversy, examined the matter from two different angles. Firstly, whether Bench Secretaries in the High Court of Allahabad, were entitled to the pay-scale admissible to Section Officers? Secondly, whether the creation of two grades with different pay-scales in the cadre of Bench Secretaries despite the fact that they were discharging the same duties and responsibilities, was violative of the principle of 'equal pay for equal work'? While answering the first question the Supreme Court felt that the issue required the evaluation of the duties and the responsibilities of the respective posts, with which the equation was sought and it was concluded that on the subject of the equation of the posts, the matter ought to be left for determination to the executive as the same would have to be examined by the expert bodies. It was, however, held that whenever it was felt that the expert bodies had not evaluated the duties and the responsibilities in consonance with the law, the matter would be open to the judicial review.
SWP no.1265/2016 Page 91 of 13386. In the said case, while acknowledging that at one time the Bench Secretaries were paid more emoluments than Section Officers, it was held, that since the successive Pay Commissions and even the Pay Rationalization Committees had found that the Section Officers performed more onerous duties, bearing the greater responsibility as compared to the Bench Secretaries, it was not possible for this Court to go against the said opinion. Therefore, the Supreme Court rejected the prayer of the Bench Secretaries as of right to be assigned a pay-scale equivalent to or higher than that of Section Officers.
87. Qua the second question, namely, whether there could be two scales of pay in the same cadre of persons performing the same or similar work or duties, the Supreme Court expressed the view that all the Bench Secretaries in the High Court of Allahabad performed the same duties but the Bench Secretaries Grade-I were entitled to a higher pay- scale than the Bench Secretaries Grade-II, on account of their selection as the Bench Secretaries Grade-I, out of the Bench Secretaries Grade-II, by a Selection Committee appointed under the rules, framed by the High Court. The above selection was based on merit with due regard to the seniority and only such Bench Secretaries Grade-II, who had acquired sufficient experience and also displayed a higher level of merit, could be appointed as the Bench Secretaries Grade-I. It was, therefore, held that the rules provided for a proper classification for the grant of higher SWP no.1265/2016 Page 92 of 133 emoluments to the Bench Secretaries Grade-I as against Bench Secretaries Grade-II. The claim raised by the Bench Secretaries for equal pay, as was extended to Section Officers, was declined by this Court.
88. In Mewa Ram Kanojia v. All India Institute of Medical Sciences (1989) 2 SCC 235, during the course of the hearing, the petitioner confined his claim for parity only with the post of Audiologist. It was urged, that educational qualifications, as well as, duties and functions of the posts of Hearing Therapist and Audiologist were similar, if not the same. It was contended, that a Hearing Therapist was required to treat the deaf and other patients suffering from the hearing defects. A Hearing Therapist is required to help in the rehabilitation of the persons with hearing impairments. It was also pointed out, that an Audiologist's work was to coordinate the separate professional skills, which contribute to the study, treatment and rehabilitation of persons with impaired hearing. As such it was submitted, that a person holding the post of an Audiologist, was a specialist in the non-medical evaluation, habilitation and rehabilitation, of those who have language and speech disorders. On the aforesaid premise, the petitioner claimed parity with the pay-scale of Audiologists.
89. The Supreme Court held that there was a qualitative difference between the two posts on the basis of educational qualifications and therefore the principle of 'equal pay for equal work' could not be invoked or applied. It was further SWP no.1265/2016 Page 93 of 133 held that the Third Pay Commission had considered the claim of the Hearing Therapists but did not accede to the grievances made by them. Since the Pay Commission was in better position to judge the volume of the work, the qualitative difference and the reliability and responsibility required of the two posts, the Supreme Court declined to accept the prayer made by the petitioner, under the principle of 'equal pay for equal work'.
90. In Harbans Lal v. State of Himachal Pradesh (1989) 4 SCC 459, the Supreme Court expressed the view that the claim made by the petitioners could not be accepted because the discrimination complained of, must be within the same establishment, owned by the same management. It was emphasized that a comparison under the principle of 'equal pay for equal work' could not be made with counterparts in other establishments, having a different management or even with establishments in different geographical locations though owned by the same master. It was held that unless it was shown that there was discrimination amongst the same set of employees under the same master in the same establishment, the principle of 'equal pay for equal work' would not be applicable. The claim of the petitioners in the said case was rejected.
91. The Supreme Court in Grih Kalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619, held that the concept of 'equal pay for equal work' implies and requires, equal treatment for those who are similarly situated. It was SWP no.1265/2016 Page 94 of 133 held, that a comparison could not be drawn between unequals. Since the workers who had approached the Court in the present case, had failed to establish that they were situated similarly as others, it was held, that they could not be extended benefits which were being given to those, with whom they claimed parity. In this behalf this Court also opined, that the question as to whether persons were situated equally, had to be determined by the application of broad and reasonable tests, and not by way of a mathematical formula of exactitude. And therefore, since there were no other employees comparable to the employees working in the Grih Kalyan Kendras, this Court declined to entertain the prayer made by the petitioners.
92. The Supreme Court in Union of India v. Pradip Kumar Dev (2000) 8 SCC 580, accepted the contentions advanced by the Union of India and held that the pay-scale claimed by the respondent was that for the post of Assistant Sub- Inspector, which admittedly was a promotional post for Naik (Radio Operator), i.e., the post held by the respondent and, therefore, the claim made by the respondent of parity with a post superior in hierarchy, to the post held by him, was not sustainable. In addition, the Supreme Court arrived at a conclusion that there was no material on the record of the case to demonstrate, that the essential qualifications and the method of recruitment for, as also, the duties and responsibilities of the post held by him, were SWP no.1265/2016 Page 95 of 133 similar to those of the post, against which the respondent was claiming parity.
93. While examining the challenges, a three-Judge Bench of the Supreme Court in State Bank of India v. M R. Ganesh Babu (2002) 4 SCC 556, narrated the parameters on which the benefit of 'equal pay for equal work' can be made applicable, as under:-
"16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystalised and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. 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. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide reasonably and rationally, was not open to interference by the court."
94. Based on the aforesaid parameters, the Supreme Court considered the acceptability of the claim of the specialist SWP no.1265/2016 Page 96 of 133 officers, for parity with the generalist officers. The Supreme Court recorded its conclusion, as under:
"19. We have carefully perused the order of the Bank and find that several reasons have been given for non-acceptance of the respondents' claim. It has been highlighted that the Probationary Officers/Trainee Officers are being recruited from market/promoted from clerical staff by the Bank by means of all-India written test and interview to get the best talent from the market and within, with a view to man the Bank's top management in due course. Leaned counsel for the respondents submitted that the same is also true of specialist officers. However, it is contended on behalf of the appellant Bank that the generalist officers are exposed to various assignments including mandatory rural assignments. Unlike them, the services of Assistant Law Officers are utilized as in- house advisors on legal matters in administrative offices. The duties and responsibilities of Probationary Officers/Trainee Officers are more onerous while the specialist officers are not exposed to operational work/risk. It is, therefore, quite clear that there exists a valid distinction in the matter of work and nature of operations between the specialist officers and the general category officers. The general category officers are directly linked to the banking operations whereas the specialist officers are not so linked and they perform the specified nature of work. RDOs were given similar fitment as the generalist officers since it was found that they were required to shoulder, by and large, the same duties and responsibilities as Probationary Officers and Trainee Officers in so far as conducting Bank's agricultural advances work was concerned. This was done on the basis of the recommendations of the Bhatnagar Committee and keeping in view the fact that the decision has been taken that there would be no future recruitment of RDOs and the existing RDOs were proposed to be absorbed in general banking cadre. The recruitment of RDOs has been discontinued since 1985. Taking into account the nature of duties and responsibilities shouldered by the respondents the Bank has concluded that the duties and responsibilities of the respondents are not comparable to the duties and responsibilities of the RDOs, the Probationary Officers or the Trainee Officers.
20. Learned counsel for the respondents submitted that specialist officers are also recruited from the open market and are confirmed after successfully completing the probation of 2 years. Before the Order of 1979 came into force, they were similarly being granted benefit of additional increments at the time of appointment in the same manner as the generalist SWP no.1265/2016 Page 97 of 133 officers. However, after the order of 1979 they have been deprived of this benefit. Subsequently that benefit was extended to RDOs but not to the respondents and others like them. We have earlier noticed that the RDOs were given the benefit of advance increments on the basis of the report of an Expert Committee which justified their classification with the generalist officers, having regard to the nature of duties and responsibilities shouldered by them. However, on consideration of the case of the respondents, the Bank as reached a different conclusion. The Bank has found that their duties and responsibilities are not the same as those of Probationary Officers/Trainee Officers/RDOs. It is no doubt true that the specialist officers render useful service and their valuable advice in the specialised fields is of great assistance to the Bank in its banking operations. The officers who belong to the generalist cadre, namely the officers who actually conduct the banking operations and who take decisions in regard to all banking works are advised by the specialist officers. There can be no doubt that the service rendered by the specialist officers is also valuable, but that is not to say that the degree of responsibility and reliability is the same as those of the Probationary Officers, the Trainee Officers, and the RDOs, who directly carry on the banking operations and are required to take crucial decisions based on the advice tendered by the specialist officers. The Bank has considered the nature of duties and responsibilities of the various categories of officers and has reached bona fide decision that while generalist officers take all crucial decisions in banking operations with which they are directly linked, and are exposed to operational work and risk since the decisions that they take has significant effect on the functioning of the bank and quality of its performance, the specialist officers are not exposed to such risks nor are they required to take decisions as vital as those to be taken by the generalist officers. They at best render advice in their specialized field. The degree of reliability and responsibility is not the same. It cannot be said that the value judgment of the Bank in this regard is either unreasonable, arbitrary or irrational. Having regard to the settled principles and the parameters of judicial interference, we are of the considered view that the decision taken by the Bank cannot be faulted on the ground of its being either unreasonable, arbitrary or discriminatory and therefore judicial interference is inappropriate."
95. The Supreme Court, given the reasons recorded above, concluded that the specialist officers could not substantiate SWP no.1265/2016 Page 98 of 133 their claim of parity. They were held not entitled to benefit of the principle of 'equal pay for equal work'. The Supreme Court said that the degree of reliability and responsibility was not the same and it cannot be said that the value judgment of the Bank was either unreasonable, arbitrary or irrational. Having regard to the settled principles and the parameters of judicial interference, the Supreme Court was of the considered view that the decision taken by the Bank cannot be faulted on the ground of it being either unreasonable, arbitrary or discriminatory and therefore judicial interference is inappropriate. Same is true qua the present case.
96. In State of Haryana v. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the respondent Association filed a writ petition before the Punjab and Haryana High Court, seeking a direction to the appellant herein, to grant Personal Assistants in the Civil Secretariat, Haryana, the pay-scale of Rs.2000-3500 + Rs.150 as special pay, which had been given to Personal Assistants working in the Central Secretariat. The aforesaid prayer was made in the background of the fact, that the State of Haryana had accepted the recommendations of the Fourth Central Pay Commission, with regard to revision of pay-scales, with effect from 1.1.1986. The case of Personal Assistants before the High Court was, that prior to 1986, Personal Assistants working in the Civil Secretariat, Haryana, were enjoying a higher SWP no.1265/2016 Page 99 of 133 scale of pay, than was extended to Personal Assistants working in the Central Secretariat. On the receipt of Fourth Central Pay Commission report, the Central Government revised the pay-scale of Personal Assistants to Rs.2000-3500 with effect from 1.1.1986. It was pointed out that even though the Government of Haryana had accepted the recommendation of the Fourth Central Pay Commission, and had also implemented the same, in respect of certain categories of employees, it did not accept the same in the case of Personal Assistants. The pay-scale of Personal Assistants in the Civil Secretariat, Haryana, was revised to Rs.1640-2900 + 150 as special pay. It was also the contention of Personal Assistants, that in respect of certain categories of employees of different departments of the State of Haryana, like Education, Police, Transport, Health and Engineering and Technical staff, the State Government had fully adopted the recommendations of the Fourth Central Pay Commission, by granting them the pay-scale of Rs.2000-3500. The claim of the Personal Assistants was also premised on the fact that the Personal Assistants working in the Civil Secretariat, Haryana, discharged the duties comparable with that of the Personal Assistants in the Central Secretariat, and so also, their responsibilities. The High Court allowed the claim of the Association. The State of Haryana approached the Supreme Court.
SWP no.1265/2016 Page 100 of 13397. The Supreme Court, while recording its consideration, expressed the view that the High Court had ignored certain settled principles of law while determining the claim of Personal Assistants by applying the principle of parity. This Court felt that the High Court was persuaded to accept the claim of the Personal Assistants only because of the designation of their post. This, it was held, was a misconceived application of the principle. In its analysis, it was recorded, that the High Court had assumed that the assertions made at the behest of the Personal Assistants that they were discharging similar duties and responsibilities as Personal Assistants in the Central Secretariat, had remained unrebutted. That the Court found, was factually incorrect. The State of Haryana, in its counter affidavit before the High Court, had adopted the specific stance, that there was no comparison between the Personal Assistants working in the Civil Secretariat, Haryana, and the Personal Assistants working in the Central Secretariat. It was highlighted, that the qualifications prescribed for the Personal Assistants in the Central Secretariat, were different from those prescribed for the Personal Assistants in the Civil Secretariat, Haryana. The High Court was also found to have erred in its determination, by not making any comparison of the nature of duties and responsibilities, or about the qualifications prescribed for recruitment. This Court SWP no.1265/2016 Page 101 of 133 accordingly set aside the order passed by the High Court, allowing parity.
98. In order to delineate the parameters, on the basis of which the principle of 'equal pay for equal work' can be made applicable, the Supreme Court observed:
"10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions SWP no.1265/2016 Page 102 of 133 issued by the employers which govern the administration of the cadre."
99. What emerges from the above is very important to be discussed here. The Supreme Court says that it should be kept in mind that the claim of 'equal pay for equal work' is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It should also be kept in mind that the priority given to different types of the posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of the issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, the Courts have taken the view that ordinarily the courts should not try to delve deep into administrative decisions pertaining to the pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied SWP no.1265/2016 Page 103 of 133 that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the Court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government, in the present case, respondent corporation, to implement the same. The said adage of the Supreme Court as well squarely covers the present case as well.
100. In Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188, the Supreme Court while dealing with the question of 'equal pay for equal work', this Court, noticed the factual position as under:-
"10. The High Court before directing to give regular pay-scale to the respondent w.e.f. September, 1997 on the principle of "equal pay for equal work" did not examine the pleadings and facts of the case in order to appreciate whether the respondent satisfied the relevant requirements such as the nature of work done by him as compared to the nature of work done by the regularly appointed Junior Assistants, the qualifications, responsibilities etc. When the services of the respondent had not been regularized, his appointment was on temporary basis on consolidated pay and he had not undergone the process for regular recruitment, direction to give regular pay-scale could not be given that too without examining the relevant factors to apply the principle of "equal pay for equal work". It is clear from the averments made in the writ petition extracted above, nothing is stated as regards the nature of work, responsibilities attached to the respondent without comparing SWP no.1265/2016 Page 104 of 133 them with the regularly recruited Junior Assistants. It cannot be disputed that there were neither necessary averments in the writ petition nor any material was placed before the High Court so as to consider the application of principle of "equal pay for equal work"."
101. Based on the fact that the respondent had not placed sufficient material on the record of the aforesaid case to demonstrate the applicability of the principle of 'equal pay for equal work', the Supreme Court set aside the order passed by the High Court, directing that the respondent be paid wages in the regular scale of pay with effect from September, 1997.
102. In Government of W.B. v. Tarun K. Roy(2004) 1 SCC 347, decided by a three-Judge bench of the Supreme Court, there were two technical posts, namely, Operator-cum- Mechanic and Sub-Assistant Engineer, in the Irrigation Department of the Government of West Bengal. In 1970, the West Bengal Government revised pay-scales, revising the pay-scale of the post of Operator-cum-Mechanic, which was initially Rs.180-350, to Rs.230-425, with effect from 1.4.1970. The pay-scale of the post of Sub-Assistant Engineer was simultaneously revised to Rs.350-600, with a higher initial start of Rs.330, with effect from the same date. Some persons in the category of Operator-cum- Mechanic, possessing the qualification of diploma in engineering, claimed entitlement to the nomenclature of Sub-Assistant Engineer, as also, the scale of pay prescribed for the post of Sub- Assistant Engineer. The Government of West Bengal, during the course of hearing of the matter SWP no.1265/2016 Page 105 of 133 before this Court, adopted the position, that diploma holder engineers working as Operator-cum-Mechanics in the Irrigation Department, were not entitled to be designated as Sub-Assistant Engineers. The said plea was negatived by the Supreme Court in State of West Bengal v. Debdas Kumar 1991 Supp. (1) 138. Another group of Operator- cum-Mechanics, who did not possess diploma in engineering, and were graduates in science, or were holding school final examination certificate, claimed parity with Operator-cum-Mechanics, possessing the qualification of diploma in engineering. This Court, while rejecting their claim, observed as under:-
"30. The respondents are merely graduates in Science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in Engineering. If any relief is granted by this Court to the respondents on the aforementioned ground, the same will be in contravention of the statutory rules. It is trite that this Court even in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant such a relief which would be in violation of a statutory provision."
103. The Supreme Court In S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279, disposed of the matter by recording the following conclusion:
"21. Learned counsel for the appellants have relied on Article 39 (d) of the Constitution. Article 39 (d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of BCCL. The question of application of Article 39 (d) of the Constitution has recently been interpreted SWP no.1265/2016 Page 106 of 133 by this Court in State of Haryana v. Charanjit Singh (2006) 9 SCC 321, wherein Their Lordships have put the entire controversy to rest and held that the principle, "equal pay for equal work" must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL."
104. A glimpse of the determination rendered by the Supreme Court divulges that for claiming the parity under the principle of 'equal pay for equal work', there should be total identity between the post held by the claimants and the reference post, with whom parity is claimed.
105. In Official Liquidator v. Dayanand [13] (2008) 10 SCC 1, a question that arose for consideration before the Supreme Court was whether the respondents were entitled to the sanctioned Government posts in the office of the Official Liquidator(s). While disposing of the said issue, the Supreme Court held as:
"100. As mentioned earlier, the respondents were employed/ engaged by the Official Liquidators pursuant to the sanction accorded by the Court under Rule 308 of the 1959 Rules and they are paid salaries and allowances from the company fund. They were neither appointed against sanctioned posts nor were they paid out from the Consolidated Fund of India. Therefore, the mere fact that they were doing work similar to the regular employees of the Offices of the Official Liquidators cannot be treated as sufficient for applying the principle of equal pay for equal work. Any such direction will compel the SWP no.1265/2016 Page 107 of 133 Government to sanction additional posts in the Offices of the Official Liquidators so as to facilitate payment of salaries and allowances to the company- paid staff in the regular pay scale from the Consolidate Fund of India and in view of our finding that the policy decision taken by the Government of India to reduce the number of posts meant for direct recruitment does not suffer from any legal or constitutional infirmity, it is not possible to entertain the plea of the respondents for payment of salaries and allowances in the regular pay scales and other monetary benefits on a par with regular employees by applying the principle of equal pay for equal work."
106. The Supreme Court in State of West Bengal v. West Bengal Minimum Wages Inspectors Association (2010) 5 SCC 225, recorded the following observations:
"20. The burden to prove disparity is on the employees claiming parity - vide State of U.P. v. Ministerial Karamchari Sangh, (1998) 1 SCC 422; Associate Banks Officers' Association v. SBI, (1998) 1 SCC 428; State of Haryana v. Haryana Civil Secretariat Personal Staff Association, (2002) 6 SCC 72; State of Haryana v. Tilak Raj, (2003) 6 SCC 123; S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279 and U. P. SEB v. Aziz Ahmad (2009) 2 SCC 606.
21. What is significant in this case is that parity is claimed by Inspectors, AMW, by seeking extension of the pay scale applicable to Inspector (Cooperative Societies), Extension Officers (Panchayat) and KGO-JLRO (Revenue Officers) not on the basis that the holders of those posts were performing similar duties or functions as Inspectors, AMW. On the other hand, the relief was claimed on the ground that prior to ROPA Rules 1981, the posts in the said three reference categories, and Inspectors, AMW were all in the same pay scale (Pay Scale
9), and that under ROPA Rules 1981, those other three categories have been given a higher Pay Scale of No.11, while they - Inspectors, AMW - were discriminated by continuing them in the Pay Scale 9.
22. The claim in the writ petition was not based on the ground that subject post and reference category posts carried similar or identical duties and responsibilities but on the contention that as the subject post holders and the holders of reference category posts who were enjoying equal pay at an earlier point of time, should be continued to be given equal pay even after pay revision. In other words, the parity claimed was not on the basis of equal pay for equal work, but on the basis of previous equal pay.SWP no.1265/2016 Page 108 of 133
23. It is now well-settled that parity cannot be claimed merely on the basis that earlier the subject post and the reference category posts were carrying the same scale of pay. In fact, one of the functions of the Pay Commission is to identify the posts which deserve a higher scale of pay than what was earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts.
24. The Pay Commission has two functions: to revise the existing pay scale, by recommending revised pay scales corresponding to the pre- revised pay scales and, secondly, make recommendations for upgrading or downgrading posts resulting in higher pay scales or lower pay scales, depending upon the nature of duties and functions attached to those posts. Therefore, the mere fact that at an earlier point of time, two posts were carrying the same pay scale does not mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale.
25. As noticed above, one post which is considered as having a lesser pay scale may be assigned a higher pay scale and another post which is considered to have a proper pay scale may merely be assigned the corresponding revised pay scale but not any higher pay scale. Therefore, the benefit of higher pay scale can only be claimed by establishing that holders of the subject post and holders of reference category posts, discharge duties and functions identical with, or similar to, each other and that the continuation of disparity is irrational and unjust."
107. In the backdrop of the above consideration, the Supreme Court observed, that the Inspectors (Agricultural Minimum Wages), had neither pleaded nor proved that they were discharging duties and functions similar to the duties and the functions of the Inspectors (Cooperative Societies), Extension Officers (Panchayats) and Revenue Officers, and therefore held, that their claim for the pay parity, under the principle of 'equal pay for equal work', could not be accepted.
SWP no.1265/2016 Page 109 of 133108. In Union Territory Administration Chandigarh v. Manju Mathur (2011) 2 SCC 452, the Supreme Court directed the Union Territory Administration of Chandigarh to appoint a 'High Level Equivalence Committee', to examine the nature of duties and responsibilities of the post of Senior Dietician working under the Union Territory Administration of Chandigarh, vis-a-vis, Dietician (gazetted) working under the State of Punjab. And also to examine the nature of duties and responsibilities of the post of Dietician, working under the Union Territory Administration of Chandigarh, vis-a-vis, Dietician (non- gazetted) working under the State of Punjab, and submit a report. A report was accordingly submitted to the Supreme Court. In its report, the 'High Level Equivalence Committee' arrived at a conclusion, that the duties and responsibilities of the posts held by the respondents and the corresponding reference posts with which they were claiming the parity were not comparable or equivalent and therefore the Supreme Court recorded the following observations:
"9. We have heard the learned Counsel for the parties. We find from the report of the High Level Equivalence Committee extracted above that the Directorate of Research and Medical Education, Punjab, is a teaching institution in which the Dietician has to perform multifarious duties such as teaching the probationary nurses in subjects of nutrition dietaries, control and management of the kitchen, etc., whereas, the main duties of the Dietician and Senior Dietician in the Government Multi-Specialty Hospital in the Union Territory Chandigarh are only to check the quality of food being provided to the patients and to manage the kitchen."SWP no.1265/2016 Page 110 of 133
109. In view of the above determination, the prayer for parity under the principle of 'equal pay for equal work' was declined to the respondents by the Supreme Court, and as a sequel of which, the judgment of the High Court, was set aside.
110. In Steel Authority of India Limited v. Dibyendu Bhattacharya (2011) 11 SCC 122, a Division Bench of the Calcutta High Court, accepted the claim of the respondent for pay parity. The Steel Authority of India knocked at the doors of the Supreme Court assailing the judgment rendered by the High Court. The issue of pay parity was dealt with by the Supreme Court by recording the following observations:
"30. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.
31. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The Expert Committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions, etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not SWP no.1265/2016 Page 111 of 133 prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work."
111. Given the above consideration, whereby the Supreme Court held that the law on the issue of 'equal pay for equal work' can be summarised to the effect that the parity of the pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of the selection/recruitment, the nature and the quality of the work and the duties and the effort, reliability, confidentiality, dexterity, functional need and responsibilities and the status of both the posts are identical. The functions may be the same but the skills and the responsibilities may be different. Granting parity in the pay scales depends upon the comparative evaluation of the job and the equation of the posts. The person, claiming parity, must plead the necessary averments and prove that all things are equal between the posts concerned and such a complex issue cannot be adjudicated and determined by evaluating the affidavits filed by the parties.
112. The Supreme Court went ahead by saying that the onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The Expert Committee SWP no.1265/2016 Page 112 of 133 has to decide such issues because the fixation of the pay scales, etcetera, falls within the exclusive domain of the executive. So long as the value of the judgment of those who are responsible for administration, i.e. service conditions, etcetera, is found to be bona fide, reasonable, and on intelligible criteria, which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The Courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The Court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale / wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work. The aforesaid axiom of the Supreme Court applies to the present case as well and therefore sets at rest the controversy in hand.
113. The Supreme Court recorded its analysis on the merits of the controversy, as under:
"34. Shri B.V. Prabhakar, had been appointed in E-1 Grade, in the Rourkela unit, considering his past services in the Bokaro Steel Plant, another unit of the Company, for about two decades prior to the recruitment of the respondent. As every unit may make appointments taking into consideration the SWP no.1265/2016 Page 113 of 133 local needs and requirement, such parity claimed by the respondent cannot be held to be tenable. The reliefs sought by the respondent for upgradation of the post and waiving the eligibility criteria had rightly been refused by the appellants and by the learned Single Judge. In such a fact-situation, there was no justification for the Division Bench to allow the writ petition, granting the benefit from the date of initial appointment of the respondent. The respondent has not produced any tangible material to substantiate his claim, thus, he could not discharge the onus of proof to establish that he had made some justifiable claim. The respondent miserably failed to make out a case for pay parity to the post of E-1 Grade in executive cadre. The appeal, thus, deserves to be allowed."
114. It is, thus apparent, that the Supreme Court did not accept the prayer of the pay parity, in the above cited case, based on the principle of 'equal pay for equal work'.
115. In Hukum Chand Gupta v. Director General, Indian Council of Agricultural Research (2012) 12 SCC 666, while adjudicating upon the above controversy, the Supreme Court relied and endorsed the reasons recorded by the Administrative Tribunal in rejecting the claim of the appellant in the following manner:
"9. 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. 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 8-7-2008. This judgment is impugned in the present appeal."SWP no.1265/2016 Page 114 of 133
116. The Supreme Court recorded the following additional reasons for not accepting the claim of the appellant, by observing as under:
"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 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 24-8-1990 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."
117. The Supreme Court concluded the issue by holding as under:
"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 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 cannot 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 SWP no.1265/2016 Page 115 of 133 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 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.
21. In expressing the aforesaid opinion, we are fortified by the observations made by this Court in State of Punjab v. Surjit Singh (2009) 9 SCC 514. In that 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:
(SCC pp. 527-28, para "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 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 SWP no.1265/2016 Page 116 of 133 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) In our opinion, the aforesaid observations would be a complete answer to all the submissions made by the appellant."
118. For the above reasons, the Supreme Court rejected the claim of the appellant, based on the principle of 'equal pay for equal work'. The Supreme Court pointed out that the quality of the work, which is produced, may be different and even the nature of the work assigned may be different. It is not just a comparison of the 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 the work. There may be the qualitative difference as regards the reliability and responsibility. The functions may be the same but the responsibilities make a difference. Thus, normally the applicability of the principle of 'equal pay for equal work' must be left to be evaluated and determined by an expert body, because those are not the matters, where a Writ Court can lightly interfere.
119. In National Aluminum Company Limited v. Ananta Kishore Rout (2014) 6 SCC 756, the appellant had established two schools. In the first instance, NALCO itself looked after the management of the said schools. In 1985, SWP no.1265/2016 Page 117 of 133 it entered into two separate but identical agreements with the Central Chinmoy Mission Trust, Bombay, whereby the management of the schools was entrusted to the above trust. In 1990, a similar agreement was entered into for the management of the above two schools, with the Saraswati Vidya Mandir Society, affiliated to Vidya Bharati Akhila Bharatiya Shiksha Sansthan. Accordingly, with effect from 1990, the said Society commenced to manage the affairs of the employees, of the above two schools. Two writ petitions were filed by the employees of the two schools before the High Court of Orissa at Cuttack, seeking a mandamus, that they be declared as employees of NALCO, and be treated as such, with the consequential prayer, that the employees of the two schools be accorded suitable pay-scales, as were admissible to the employees of NALCO. The High Court accepted the above prayers. It is, therefore, that NALCO approached the Supreme Court. In adjudicating upon the above matter, the Supreme Court recorded its consideration as under:
"33. Insofar as their service conditions are concerned, as already conceded by even the respondents themselves, their salaries and other perks which they are getting are better than their counter parts in Government schools or aided/ unaided recognised schools in the State of Orissa. In a situation like this even if, for the sake of argument, it is presumed that NALCO is the employer of these employees, they would not be entitled to the pay scales which are given to other employees of NALCO as there cannot be any comparison between the two. The principle of ''equal pay for equal work'' is not attracted at all. Those employees directly employed by NALCO are discharging altogether different kinds of duties. Main activity of NALCO is the manufacture and production of alumina and aluminium for SWP no.1265/2016 Page 118 of 133 which it has its manufacturing units. The process and method of recruitment of those employees, their eligibility conditions for appointment, nature of job done by those employees etc. is entirely different from the employees of these schools. This aspect is squarely dealt with in the case of SC Chandra vs. State of Jharkhand, (2007) 8 SCC 279, where the plea for parity in employment was rejected thereby refusing to give parity in salary claim by school teachers with class working under Government of Jharkhand and BCCL. The discussion which ensued, while rejecting such a claim, is recapitulated hereunder in the majority opinion authored by A.K. Mathur, J.: (SCC p. 289, paras 20-21) "20. After going through the order of the Division Bench we are of opinion that the view taken by the Division Bench of the High Court is correct. Firstly, the school is not being managed by BCCL as from the facts it is more than clear that BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL.
21. Learned counsel for the appellants have relied on Article 39 (d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be educated with the clerks of the State Government or of BCCL. The question of application of Article 39 (d) of the Constitution has recently been interpreted by this Court in State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, wherein their Lordships have put the entire controversy to rest and held that the principle, 'equal pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and SWP no.1265/2016 Page 119 of 133 same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL."
120. Based on the above consideration, the Supreme Court recorded its conclusion as follows:
"35. We say at the cost of repetition that there is no parity in the nature of work, mode of appointment, experience, educational qualifications between the NALCO employees and the employees of the two schools. In fact, such a comparison can be made with their counter parts in the Government schools and/or aided or unaided schools. On that parameter, there cannot be any grievance of the staff which is getting better emoluments and enjoying far superior service conditions."
121. It is, therefore apparent that the principle of 'equal pay for equal work' was held to be not applicable to the employees of the two schools, so as to enable them to claim parity, with the employees of NALCO.
122. What is deducible from the above discourse is that the submission of the petitioners that there can be no distinction in the pay scales between the employees working in the respondent corporation and the employees working in other corporations/government organizations, cannot be accepted. The employees working in different corporations / government organizations are governed by a completely different set of rules. Even the hierarchy of the posts and the channels of the promotion are extremely distinct and different. Also, merely because any two posts in the respondent corporation and in corporations / SWP no.1265/2016 Page 120 of 133 departments, of which the reference has been made in the writ petition, have the same nomenclature, would not necessarily require that the pay scales on the two posts should also be the same.
123. In my opinion, the prescription of the 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 cannot be any straitjacket formula for holding that the two posts having the same nomenclature would have to be given the same pay scale.
124. 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 the expert bodies like the employer. This Court
- a Writ Court - would not normally venture to substitute its own opinion for the opinions rendered by the experts. This Court would lack the necessary expertise to undertake the complex exercise of equation of posts or the pay scales. In expressing the said opinion, I am fortified by the observations made by the Supreme Court in State of Punjab v. Surjit Singh (2009) 9 SCC 514; Steel Authority of SWP no.1265/2016 Page 121 of 133 India Limited v. Dibyendu Bhattacharya (supra); National Aluminum Company Limited v. Ananta Kishore Rout (supra); Hukum Chand Gupta v. Director General, ICAR (supra).
125. It is very often held by the Courts that 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, the merit or the experience can be a proper basis for classification for the purposes of pay in order to promote the efficiency in the administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation.
126. The Supreme Court, in State of Punjab v. Jagjit Singh, (2017) 1 SCC 148, has held that temporary employees would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post. The Supreme Court, after referring to various case laws qua the SWP no.1265/2016 Page 122 of 133 principle of equal pay for equal work, has summarized the principles as follows:
i. The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post;
ii. The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of 'equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government;
iii. The principle of 'equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification. For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity;SWP no.1265/2016 Page 123 of 133
iv. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of 'equal pay for equal work'. Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature;
v. In determining equality of functions and responsibilities, under the principle of 'equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar.
vi. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible. The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of 'equal pay for equal work';
vii. For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should SWP no.1265/2016 Page 124 of 133 have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale;
viii. Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as - 'selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria;
ix. If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable. In such a cause, the principle of 'equal pay for equal work', cannot be invoked;
x. The reference post, with which parity is claimed, under the principle of 'equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post;
xi. A comparison between the subject post and the reference post, under the principle of 'equal pay for SWP no.1265/2016 Page 125 of 133 equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master. Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity;
xii. Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of 'equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post;
xiii. The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of 'equal pay for equal work' would not be applicable;
xiv. The parity in pay, under the principle of 'equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same SWP no.1265/2016 Page 126 of 133 pay- scale. The principle of 'equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities; xv. For parity in pay-scales, under the principle of 'equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable;
xvi. There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level when the duties are qualitatively dissimilar;
xvii. The principle of 'equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of SWP no.1265/2016 Page 127 of 133 ameliorating stagnation, or on account of lack of promotional avenues;
xviii. Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of 'equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of 'equal pay for equal work' would not apply.
127. 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 SWP no.1265/2016 Page 128 of 133 be evaluated and determined by an expert body. These are not the matters where a Writ Court can lightly interfere.
128. All in all, the petitioners, in the present case, exhort the pay parity. Their grumble is that they are being given less pay scale than the Accounts Assistants inasmuch as that they are working and handling the accounts of the respondent department equivalent to the Assistant Accounts Officer in other departments/corporations and they be placed in the Pay Scale of 9300-34800 with Grade Pay of Rs.4800.00. It may not be out of place to mention here that the posts of Accounts Assistants, reference whereof has been made by the petitioner, are, particularly in J&K State, subordinate posts in J&K Accounts Service. What is the status of the Accounts Assistant and where it figures and places in the J&K Accounts Service is imperative to be seen from the Service Recruitment Rules that govern and regulate it. The J&K Accounts Service (Revised) Rules, 1972, amended vide Notification/SRO 521 dated 19th December 2013, envisage that the Pay Band/ Scale of the Director General, Accounts & Treasuries, and all such officers, holding the 'Super Time Scale' of the Service shall be Rs.37400-67000 plus the Grade Pay of Rs.10,000.00. The pay scale of the Officers, holding the 'Special Scale' Grade, shall be 37200-67000 with the Grade Pay of Rs.8700/- and accordingly the Pay Band/Pay Scale of the officers, holding the 'Junior Scale' Grade of the Service (Accounts Officers, Treasury Officers, Additional District SWP no.1265/2016 Page 129 of 133 Treasury Officers) shall be 9300-34800 with the Grade Pay of Rs.4800.00. The Class-I posts of the Accounts Officers, Treasury Officers and Additional District Treasury Officers, are to be filled up 50% by the direct recruitment and 50% by promotion. For filing up the said posts by promotion, the candidates/persons, aspiring therefor should be from and belong to the Class-I Kashmir Subordinate Accounts Service, with seven years' service including a service of, at least, three years in Class-I of that service. The Class-I Officer in the Kashmir Subordinate Accounts Service is, in common parlance, called as 'Assistant Accounts Officer'. The services of Assistant Accounts Officer are governed and regulated by the Kashmir Subordinate Accounts Service (K.S.A.S.) Rules, 1961. The Rule 2 of the said Rules of 1961 provides that the service shall comprise the following classes of government servants:
Class I: Senior Accountants in the pay scale of 150-15-300 Class II: Junior Accountants in the pay scale of 100-7-135-8-175. Class III: Accounts clerks and Treasury clerks in the scale of 100-220.
However, with effect from 1st January 1996 the classes of the Service shall have the following pay scales:
S. Designation Upgraded pay scale notionally No. w. e. f. 1.1.1996 and monetarily from 19.2.2003
1. Assistant Accounts Officer 7450-225-11500
2. Accountant 5500-175-9000
3. Accounts Assistant 4500-125-7000
129. Rule 4 of the Rules of 1961 envisions that the first appointment to the service may be made by the direct SWP no.1265/2016 Page 130 of 133 recruitment, by promotion or transfer from the class, next below in the service; by transfer from any other service. Rule 5 of the Rules of 1961 stipulates that no person shall be eligible for appointment to any of the classes in the service unless he possesses the special qualifications. Class-III Officer of the Kashmir Subordinate Accounts Service, viz. Accounts Assistant, of which reference has been made by the petitioners, must have passed Treasury Clerks Course and/or the Accounts Clerk's Course (A.C.C.) of the Government or the confirmatory test for the upper division clerks in the Indian Audit and Accounts Department or the confirmatory test for the auditors in the former Audit and Accounts Department of the State. Similarly, the Class-II Officers, viz. Accountants, must have passed the Subordinate Accounts Course (S.A.C.) Part-I of the Government or the Subordinate Accounts Service Examination Part I of the Indian Audit and Accounts Department or the departmental examination Part I of the former Audit and Accounts Department of the State. It is germane to mention here that Class-III officer / official (Accounts Assistant) is promoted to the post of Class-II viz. Accountant and the Class-II Officer (Accountant) is promoted to the post of Class-I Officer (Assistant Accounts Officer), however, subject to the qualification of the Examinations as stipulated under Rule 5 of the Rules of 1961. Insofar as Class-I officer viz. Assistant Accounts Officer, carrying the pay scale of 9300- SWP no.1265/2016 Page 131 of 133 34800 with Grade Pay of Rs.4600/-, is concerned, such officer is promoted to the gazetted post of the Accounts Officer / Treasury Officer / Additional District Treasury Officer, carrying the Pay Scale of 9300-34800 with the Grade Pay of Rs.4800/-, however, subject to the qualification of the Examinations as prescribed under Rule 5 of the Rules of 1961. In that view of matter, the contention of the petitioners that they be placed in the Pay Scale of 9300-34800 with the Grade Pay of Rs.4800/-, is specious. Nonetheless, the office memo (p. 90-91 to writ petition) relied upon by the petitioners, portrays that the sense of uncertainty in the service has been realised by the Finance Assistants (the petitioners) though selected in the respondent corporation after proper selection process and that it would be appropriate that the Finance Assistants, having the professional Master's Degree, are placed in the pay band of 9300-34800 with the Grade Pay of Rs.4200/- purely on the analogy of other departments/corporations, where the posts are advertised and placed in the Grade Pay of Rs.4200/-, Rs.4800/- and Rs.5200/- inasmuch as the said step will not only encourage the newly recruited cadre but also bring them out of uncertainty associated with their properly defined emoluments after completion of their probation period. Besides, a memo was also produced in which it is mentioned that the matter was placed before the Management and Finance Sub Committee, which decided to recommend to the Board of Directors that the Finance SWP no.1265/2016 Page 132 of 133 Assistants, appointed/being appointed be given the Grade Pay of Rs.2800/- prospectively instead of Rs.2400.00. The matter is stated to have been placed before the Board of Directors and the minutes of the meeting are awaited. The aforesaid office memo and the contents contained therein can be considered by the respondent corporation for placing the petitioners in the Pay Scale and the Grade Pay, which the respondent corporation deems appropriate.
130. Having an overall view of the matter and taking the foregoing verbose discussion, observations and the reasons together, the writ petition is disposed of with a direction to the respondents to accord consideration to the case of the petitioners for their placement in the Pay Scale and Grade Pay that the respondent department deems and thinks fit and proper in light of the averments made in the writ petition and annexures appended thereto. Let such consideration be accorded and decision taken within eight weeks from the date copy of this order is made available to the respondents. Disposed of.
( M. K. Hanjura ) Judge Srinagar 16.07.2018 Ajaz Ahmad SWP no.1265/2016 Page 133 of 133