judgement:
tition Nos.
8307 11 of 1983 etc.
(Under Article 32 of the Constitution of India) WITH Special Leave Petition No. 6823 of 1988.
546 From the Judgment and Order dated 22.1.1988 of the Karnataka High Court in Application No. 3392 of 1987 N.S. Hegde, Additional Solicitor General, R.K. Garg, M.C. Bhandare, Mrs. Indra Jaisingh, P.S. Poti (NP), Govind Mukhoty, TS.
Krishnamurthy Iyer (NP), Miss Rani Jethmalani, R.M. Tiwari, L.P. Gour, Mohan Katarki, D.K. Garg, V. Laxmi Narayan, P.R. Ramasheesh, M. Veerappa (NP), section Ravindra Bhatt and C.S. Vaidyanathan for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are five writ petitions under Article 32 of the Constitution by two trade unions, a socie ty formed by Law students of the University College and two individuals asking for quashing of the Karnataka Govern ment 's Notification of 12th March, 1982, and for directions to confirm the daily rated and monthly rated employees as regular government servants and for payment of normal salary at the rates prescribed for the appropriate categories of the Government servants and other service benefits.
It has been pleaded that about 50,000 such workers are employed in the different Government establishments and though many of them have put in 15 to 20 years of continuous service which is proof of the fact that there is permanent need for the jobs they perform they have not been regularised in their service and are not being paid equal pay for equal work as has been mandated by this Court by way of implementation of the Directive Principles of State Policy.
A two Judge Bench of this Court dealing with these writ petitions on 14th July, 1988, directed: "We have heard learned counsel for both the parties, only on one of the questions involved in this case viz. whether the monthly rated Gangmen who are referred to in Paragraph 1 of the Government 's order No. PWD 100 PWC 83, Bangalore dated 12th January, 1984 and the monthly rated Sowdies etc.
re ferred to in the Government 's order No, PWD 120 PWC 84 dated 4th December, 1984 should be paid the same salary as the salary paid to Gangmen and Sowdies respectively who are employed regularly by the State Government.
As we are of the view that the principle enunciated by this Court in Para graph 3 of the judgment of this Court in Daily Rated Casual Labour Employed under 547 P & T Department through Bhartiya Dak Tar Mazdoor Manch vs Union of India & Ors., is applicable to this case also, we direct the Government of Karnataka to pay salary to such workmen at the rates equivalent to the mini mum pay in the pay scales of the regularly employed Gangmen or Sowdies, as the case may be, but without any increment with effect from 1.7. 1988.
The question whether they are entitled to any arrears for the period between the date on which their services were regularised under the State Gov ernment 's Orders and 1.7.
1988 will be considered along with the other questions involved in this case at the final hearing.
This case shall stand adjourned by three months.
In the meanwhile we permit the State Government to frame a more rational scheme for absorbing as many casual workers and monthly rated Gangmen and Sowdies as possible in regular cadres.
The case need not be treated as part heard.
" Pursuant to the aforesaid directions, the State of Karnataka has filed a draft scheme, copies of which have been served on the parties, their response to the draft scheme has been received and the matter has been heard at length.
A three Judge Bench in Randhir Singh vs Union of India & Ors., ; observed: "It is true that the principle of 'equal pay for equal work ' is not expressly declared by our Constitution to be a funda mental right.
But it certainly is a constitutional goal.
Article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women ' as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women ' means equal pay for equal work for everyone and as between the sexes.
Directive Principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation.
Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
These equality clauses of the Constitution must mean some thing to everyone.
To the vast majority of the 548 people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get.
To them the equality clauses will have some substance if equal work means equal pay.
Whether the special procedure prescribed by a statute for trying alleged robber barons and smuggler kings or for dealing with tax evaders is discriminatory; whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions to people of this country untouched.
Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them . .
Construing Articles 14 and 16 of the Constitution in the light of the Preamble and Article 39(d), we are of the view that the principle 'equal pay for equal work ' is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
" That was the case of Delhi Police drivers.
In the case of Dhirendra Charnoli & Anr.
vs State of U.P., , the claim for equal pay for equal work arose for con sideration on the complaint of persons who were engaged by the Nehru Yuvak Kendra as casual workers on daily wage basis.
While dealing with the problem a two Judge Bench took note of the fact that casual employment was being continued for too long a period and directed: "the Central Government to accord to these persons who are employed by the Nehru Yuvak Kendras and who are concededly performing the same duties as Class IV employees, the same salary and conditions of service as are being .received by Class IV employees, except regularisation which cannot be done since there are no sanctioned posts.
But we hope and trust that posts will be sanctioned by the Central Govern ment in the different Nehru Yuvak Kendras, so that these persons can be regularised.
It is not at all desirable that any management and particularly the Central Government should continue to employ persons on 549 casual basis in organisations which have been in existence for over 12 years.
" Both these aspects, namely, 'equal pay for equal work ' and continuing casual employment for too long came for consideration of another two Judges Bench of this Court in Surinder Singh & Anr.
vs Engineer in Chief, C.P.W.D. & Ors., Chinnappa Reddy, J. speaking for the Court began his judgment by saying: "In these two writ petitions, the petitioners who are em ployed by the Central Public Works Department on a daily wage basis and who have been so working for several years, demand that they should be paid the same wages as permanent employees employed to do identical work.
They state that even if it is not possible to employ them on regular and permanent basis for want of a suitable number of posts, there is no reason whatsoever why they should be denied 'equal pay for equal work '.
Continuing to deal with the matter the learned Judge pointed out: "One would have thought that the judgment in the Nehru Yuvak Kendras case concluded further argument on the question.
However, Shri V.C. Mahajan, learned counsel for the Central Government reiterated the same argument and also contended that the doctrine of 'equal pay for equal work ' was a mere abstract doctrine and that it was not capable of being enforced in a court of law.
He referred us to the observa tions of this Court in Kishori Mohanlal Bakshi vs Union of India, AIR 1962 SC 1139.
We are not a little surprised that such an argument should be advanced on behalf of the Central Government 36 years after the passing of the Constitution and 11 years after the Fortysecond Amendment proclaiming India as a socialist republic.
The Central Government like all organs of the State is committed to the Directive Prin ciples of State Policy and Article 39 enshrines the princi ple of equal pay for equal work.
In Randhir Singh vs Union of India, supra, this Court has occasion to explain the observations in Kishori Mohanlal Bakshi vs Union of India, and to point out how the principle of equal pay for equal work is not an abstract doctrine and how it is a vital and vigorous doctrine 550 accepted throughout the world, particularly by all socialist countries.
For the benefit of those who do not seem to be aware of it, we may point out that the decision in Randhir Singh, case has been followed in any number of cases by this Court and has been affirmed by a Constitution Bench of this Court in D.S. Nakara vs Union of India, ; The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should ill come from the mouths of the State and the State Undertakings . . " A little later came the case of R.D. Gupta & Ors.
vs Lt. Governor, Delhi Admn.
& Ors., ; raising the problem of inequality of pay in a situation where equal work was being rendered.
In paragraph 18 of the judgment the ratio of the decision already referred to was reaffirmed.
In the case of Bhagwan Dass & Ors.
vs State of Haryana & Ors.
, [1987] 4 SCC 634, the same principles were reiterated in the case of Teachers and Supervisors in the education service.
Another Division Bench in Jaipal & Ors.
vs State of Haryana & Ors.
, [1988] 3 SCC 354 was dealing with the disparity in the conditions of service of Instructors under the Adult and Non formal Education Scheme and regular employees of the State of Haryana.
This court stated: "There is no doubt that instructors and squad teachers are employees of the same employer doing work of similar nature in the same department; therefore, the appointment on a temporary basis or on regular basis does not affect the doctrine of equal pay for equal work.
Article 39(d) con tained in Part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women.
Though Article 39 is included in the chapter on Directive Principles of State Policy, but it is fundamental in nature.
The purpose of the Article is to fix certain social and economic goals for avoiding any discrimi nation amongst the people doing similar work in matters relating to pay.
The doctrine of equal pay for equal work has been implemented by this Court in Randhir Singh vs Union of India, Dhirendra Chamoli vs State of U.P. and 551 Surinder Singh vs Engineer in Chief, CPWD.
In view of these authorities it is too late in the day to disregard the doctrine of equal pay for equal work on the ground of the employment being temporary and the other being permanent in nature.
A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee.
" In the case of Daily Rated Casual Labour employed under P & T Department vs Union of India & Ors., , the twin aspects for consideration before us had arisen for determination.
This Court then indicated: "It may be true that the petitioners have not been regularly recruited but many of them have been working continuously for more than a year in the department and some of them have been engaged as casual labourers for nearly ten years.
They are rendering the same kind of service which is being ren dered by the regular employees doing the same type of work.
Clause (2) of Article 38 of the Constitution of India which contains one of the Directive Principles of State Policy provides that 'the State shall, in particular, strive to minimise the inequalities in income and endeavour to elimi nate 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 '.
Even though the above directive principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the peti tioners to show that in the instant case they have been subjected to hostile discrimination.
It is urged that the State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the government may not be compelled to extend all the benefits enjoyed by regularly recruited employees.
We are of the view that such denial amounts to exploitation of labour.
The government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages.
It may be that the casual labourer has agreed to work on such low wages.
That he has done because he has no other choice.
It is poverty that has driven him to that state.
The government should be a model employer.
We are 552 of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable . .
India is a socialist republic.
It implies the existence of certain important obligations which the State has to discharge.
The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unem ployment.
the right of everyone who works to just and fa vourable remuneration ensuring a decent living for himself and his family, the right of everyone without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to join trade unions of one 's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures.
It is true that all these rights cannot be extended simulta neously.
But they do indicate the socialist goal.
The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country.
Of those rights the question of security of work is of utmost importance.
If a person does not have the feeling that he belongs to an organisation engaged in production he will not put forward his best effort to produce more.
That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management.
It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of produc tion.
It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time . ' ' Keeping these principles in view this Court in the case of H.P. Income 553 Tax Department Contingent Paid Staff Welfare Association vs Union of India & Ors., ; indicated with emphasis: "We accordingly allow this writ petition and direct the respondents to pay wages to the workmen who are employed as the contingent paidstaff of the Income Tax Department throughout India, doing the work of Class IV employees at the rates equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadres . . " Then came the case of State of U.P. & Ors.
vs J.P. Chau rasia & Ors.; , where a Division Bench of this Court reiterated: "Equal pay for equal work for both men and women has been accepted as a constitutional goal capable of being achieved through constitutional remedies.
" On this occasion the authority of the larger Bench in Kesa vananda Bharati vs State of Kerala, [1973] 4 SCC 225 where the Court said 'the dominant objective in view was to amel iorate and improve the lot of the common man and to bring about a socio economic justice ' was called in aid for the conclusion of the Court.
Reference may also be made to another Division Bench judgment of this Court in the case of Bhagwan Sahai Carpen ter & Ors.
vs Union of India & Anr.
, ; where the ratio of the decisions referred to above was given effect to.
We have referred to several precedents all rendered within the current decade to emphasise upon the feature that equal pay for equal work and providing security for service by regularising casual employment within a reasona ble period have been unanimously accepted by this Court as a constitutional goal to our socialistic polity.
Article 141 of the Constitution provides how the decisions of this Court are to be treated and we do not think there is any need to remind the instrumentalities of the State be it of the Centre or the State, or the public sector that the Consti tution makers wanted them to be bound by what this Court said by way of interpreting the law.
The question that arises in these matters is indeed not one that has been left wholly to the realm of interpretation and to be described 554 as Judge made law.
Parliament has stepped in as early as 1976 by enacting the Equal Remuneration Act (25 of 1976) to take over a part of the question which arises here.
That Act is a legislation providing equality to pay for equal work between men and women which certainly is a part of the principle which we are considering.
President Roosevelt, the American Chief Executive, in one of his annual reports about the state of the Nation to the Congress once pointed out: "The chief law makers in our country may be, and often are, the Judges because they are the final seat of authority.
Every time they interpret contract, property vested rights, due process of law, liberty, they necessarily enact into law part of a system of social philosophy; and as such interpre tation is fundamental, they give direction to all law mak ing.
The decisions of the Courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century, we shall owe most of those Judges to hold to a twentieth century economic and social philosophy and not to a long overgrown philosophy which was itself a product of primitive economic conditions.
" We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the Court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty Second Amendment has declared the Republic to be a socialistic one.
The judgments, therefore, do nothing more than highlight one aspect of the constitu tional philosophy and make an attempt to give the philosophy a reality of flesh and blood.
Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated: "Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural level.
Everything that comes in the way will have to be removed gently if possible; forcibly if 555 necessary, and there seems to be little doubt that coercion wilt often be necessary.
" These were his prophetic words about three decades back.
More than a quarter of century has run out since he left us but there has yet been no percolation in adequate dose of the benefits the constitutional philosophy stands for to the lower strata of society.
Tolstoy wrote: "The abolition of slavery has gone on for a long time.
Rome abolished slavery.
America abolished it and we did but only the words were abolished, not the thing.
" Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional etches.
It has still remained on paper and is contained in the book.
The benefits have not yet reached the common man.
What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers.
These were the words of the Swami: "It is imperative that all this various yogas should be carried out in practice.
Mere theories about them wilt not do any good.
First we have to hear about them; then we have to think about them.
We have to reason the thoughts out, impress them on our minds and meditate on them; realise them, until at last they become our whole life.
No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self.
By means of intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow.
But true religion never changes.
Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be.
It is being and becoming, not hearing or acknowledg ing.
It is the whole soul 's becoming changed into what it believes.
That is religion.
" The relevant constitutional philosophy should be the substitute for religion and it must be allowed to become a part of every man in this country; then only would the Constitution reach every one and he or she would be nearer the goals set by it.
That perhaps can happen in every field.
556 The precedents referred to above have, therefore, obliged the State of Karnataka, respondent before us, to regularise the services of the casual employees who are in these cases called daily rated and monthly rated employees and the State of Karnataka is obliged to make them the same payment as regular employees are getting.
Mr. Hegde appear ing for the State has, however, pointed out that while on principle it is difficult to play a different tune, in reality and as a matter of state craft, implementation thereof forthwith is an economic impossibility.
He has, therefore, placed the scheme drawn up by the State for our consideration and has pleaded for balancing the philosophy and the economic constraints of the State for the purpose of resolution of the dispute.
We have already pointed out that there are about 50,000 employees covered by the classifications who await regulari sation.
On 3rd of April, 1986, the question of regularisa tion of services of persons working on daily wages in the local bodies under the administrative control of the Urban Wing of the Housing and Urban Development Department came for consideration on the basis of the report of the Commit tee set up on 26.11.
In the meantime, this Court 's order dated 17th of January, 1986 in a group of writ peti tions laying down the principle of equal pay for equal work had been pronounced.
Keeping that in view the State Govern ment on 3.4.1986 made the following order: "Having regard to the recommendations of the Com mittee and after duly taking into account the observation made by the Supreme Court in the case referred to above, Government of Karnataka hereby direct that all the employees working on daily wage basis or NMR basis in the local bodies which come under the administrative control of Urban Wing of Housing and Urban Development Department, be granted the same pay and allowances as are allowed to regular employees of the respective cadres with effect from 1.1.1986, subject to the following conditions: 1.
No financial assistance shall be available from Government.
The additional resources on this account should be raised by the local bodies concerned; and 557 3.
The local bodies should freeze the recruitment for the next 4 to 5 years or alternatively study the work load and prune the expenditure accordingly.
On 2nd of July, 1986, a set of rules known as the Karna taka State Civil Services (Special Recruitment of the Candi date) Rules, 1986 came into force.
We have been told that ambit of the present dispute before us is in no manner affected by the said decision of the Government nor the Rules that have been referred to above.
We do not propose to examine the correctness of this statement while dealing with the scheme of the State Government.
The scheme furnished by the State contemplates that all casual/ daily rated employees appointed on or before 2.7.
1974 shall be treated as monthly rated establishment employ ees on a fixed pay of Rs.780 per month without any allowance from 1.1.
They would be eligible for an annual incre ment at the rate of Rs. 10 till their services are regula rised.
On regularisation they shall be adjusted at the basic payscale applicable to the lowest Group D cadre but would be entitled to all other benefits available to regular employ ees of their class.
From amongst the casual and daily rated employees who have completed ten years of service as on 31.12.1989, 18,600 would be immediately regularised on seniority cum suitability basis with effect from 1.1. 1990.
The State Government shall also regularise the serv ices of the remaining casual or daily rated workers who have already completed ten years of service as on 31.12.1989 but could not be included in the limit of 18,600 in a phased manner on the basis of seniority cumsuitability on or before 31st of December, 1990.
The remaining casual or daily rated employees will be absorbed and/or regularised in a phased manner on seniority cum suitability basis on or before 31st of December, 1997.
This revised scheme filed by Mr. Hegde for the State has, however, not been accepted by Mr. Bhandare and other counsel appearing on the side of the petitioners in these petitions though on certain aspects there is unanimity.
Mr. Bhandare in his note by way of response to the scheme of Mr. Hegde has emphasised upon the need of regularising all the employees who have completed ten years of service with effect from 1.1. 1990.
He has further claimed that all the casual and daily rated workmen who have completed five years of service as on 31.12.
1989 should be put on monthly rated pay and the balance of casual or daily rated workmen who are not covered by the above two classes should be continued in that capacity and put on the monthly 558 rated establishments as and when they complete five years of service and be regularised on completion of ten years of service from the initial employment as daily rated workmen.
It has been contended that a lot of these casual and daily rated workmen have been retrenched in violation of this Court 's interim order dated 25.7.1983 and there should be a direction for their reinstatement with the benefit of no break in service.
It has been further maintained that some of these employees belong to higher classifications like Groups B and C and, therefore, they should be given the benefit of the corresponding scales of pay on regularisa tion.
One of the further claims in the written note of Mr. Bhandare is that when the daily rated workmen are absorbed into monthly rated employment, they should be entitled to the minimum basic wage in the corresponding scale of the group of the permanent employees.
The response points out that the casual and daily rated workmen to be covered by the scheme should include casual employees and NMR employees, progressive farmers, gram sahai and anganwadi workers.
There is claim for weightage for past service, namely, for every unit of five years exceeding ten years of service on the date of regularisation, an additional increment should be admissible and added to the basic salary and the advantages of the scheme extended to all the employees under the State prior to formation of the Zila Parishads in the Karnataka State and transfer of some of them to the Zila Parishads and Mandal Panchayats.
Finally, it has been contended that no one who is in employment on casual or daily rated basis on the date of our judgment should be retrenched.
We can well realise the anxiety of the petitioners who have waited too long to share the equal benefits mandated by Part IV of the Constitution in respect of their employment.
At the same time, we cannot overlook the contraints arising out of or connected with availability of State resources.
Keeping both in view and reposing our trust in the relevant instrumentalities of the State that may be connected with the implementation of the scheme to act with a sense of fairness, anxiety to meet the demands of the human require ments and also anxious to fulfil the constitutional obliga tions of the State, the directions which we give below will give a final shape to the scheme thus: 1.
The casual/daily rated ' employees appointed on or before 1.7.1984 shall be treated as monthly rated establishment employees at the fixed pay of Rs.780 per month without any allowances with effect from 1.1.
They would be enti tled to 559 an annual increment of Rs. 15 till their services are regu larised.
On regularisation they shall be put in the minimum of the time scale of pay applicable to the lowest Group D cadre under the Government but would be entitled to all other benefits available to regular government servants of the corresponding grade.
Those belonging to the B or C Groups upon regularisa tion shall similarly be placed at the minimum of the time scale of pay applicable to their respective groups under government service, and shall be entitled to all other benefits available to regular government servants of these grades.
From amongst the casual and daily rated employees who have completed ten years of service by 31.12.1989, 18,600 shall immediately be regularised with effect from 1.1.
1990 on the basis of seniority cum suitability.
There shall be no examination but physical infirmity shall mainly be the test of suitability.
The remaining monthly rated employees covered by the paragraph 1 who have completed ten years of service as on 3 ist December, 1989, shall be regularised before 31st Decem ber, 1990, in a phased manner on the basis of seniority cum suitability, suitability being understood in the same way as above.
The balance of casual or daily rated employees who become entitled to absorption on the basis of completing ten years of service shall be absorbed/regularised in a phased manner on the same principle as above on or before December 31, 1997.
At the point of regularisation, credit shall be given for every unit of five years of service in excess of ten years and one additional increment in the time scale of pay shall be allowed by way of weightage.
There was a direction that the claims on other heads would be considered at the time of .final disposal.
We have come to the conclusion that apart from these reliefs no other would be admissible.
We are alive to the position that the scheme which we have finalised is 'not the ideal one but as we have already stated, it is the obligation of the Court to individualise justice to suit a given situation 560 in a set of facts that are placed before it.
Under the scheme of the Constitution the purse remains in the hands of the Executive.
The Legislature of the State controls the Consolidated Fund out of which the expenditure to be in curred in giving effect to the scheme will have to be met.
The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer.
Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand.
We have, there fore, made our directions with judicious.
restraint with the hope and trust that both parties would appreciate and under stand the situation.
The instrumentality of the State must realise that it is charged with a big trust.
The money that flows into the Consolidated Fund and constitutes the re sources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people.
May be that in every situation the same tax payer is not the beneficiary.
That is an incident of taxa tion and a necessary concomitant of living within a welfare society.
Since this is not an adversarial litigation, we make no order as to costs.
R.N.J. Petitions allowed.

summary/full:
These are Writ Petitions under Article 32 of the Consti tution of India and a Special Leave Petition against the Judgment of the Karnataka High Court filed by two trade unions and a Society formed by law students of the Universi ty College and two individuals asking for quashing the Karnataka Government 's Notification dated 12th March, 1982 and for directions to confirm the daily rated and monthly rated employees as regular government servants and for payment of normal salary and service benefits as applicable to the appropriate categories of the government servants.
Nearly 50,000 such persons are employed in different Government establishments though many of them have put in 15 to 20 years of continuous service.
They have not been regu larised in their service and are not being paid equal pay for equal work as has been mandated by this Court by way of implementation of the Directive Principles of State Policy.
Pursuant to the directions of this Court, the State of Karnataka filed a draft Scheme.
The Court considering both the aspects of 'equal pay for equal work ' and continuing casual employment for too long re affirmed the view that the principle of 'equal pay for equal work ' is not an abstract doctrine instead it is vital and vigorous doctrine accepted throughout the world.
While accepting the petitions, the Court, HELD: That 'equal pay for equal work ' and providing security for service by regularising casual employment within a reasonable period have been unanimously accepted by this Court as a constitutional goal of our socialist polity.
While giving directions to the State for giving final shape to the Scheme, the Court further held that under the 545 scheme of the Constitution the purse remains in the hands of the Executive.
The Legislature of the State controls the consolidated Fund out of which the expenditure to be in curred, in giving effect to the scheme will have to be met.
[553F; 559H; 560A] The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer.
Therefore unduly burdening the State for implementing the constitutional obligation would create problems which the State may not be able to stand.
Directions have there fore been made with judicious restraint with the hope and trust that both parties would appreciate and understand the situation.
The instrumentality of the State must realise that it is charged with a big trust.
[560B C] The casual/daily rated employees appointed on or before 1.7.1984 shall be treated as monthly rated establishment employees at the fixed pay of Rs.780 p.m. without any allow ances with effect from 1.1.
[558H] The scheme which has been finalised is not the ideal one.
It is the obligation of the Court to individualise justice to suit a given situation in a set of facts that are placed before it.
[559H] Randhir Singh vs Union of India & Ors.
, ; ; Dhirendra Chamoli & Anr.
vs State of U.P., ; Surinder Singh & Ant.
vs Engineer in Chief, C.P.W.D. & Ors.
, ; Kishori Mohanlal Bakshi vs Union of India, AIR 1962 SC 1139; D.S. Nakara vs Union of India, ; ; R.C. Gupta & Ors.
vs Lt. Governor, Delhi Admn.
& Ors.
, ; ; Bhagwan Dass & Ors.
vs State of Haryana & Ors.
, ; Jaipal & Ors.
vs State of Haryana & Ors.
, [1988] 3 SCC 354; Daily Rated Casual Labour employed under P & T Department Contingent Paid Staff Welfare Association vs Union of India & Ors., [1987] Suppl.
SCC 658; State of U. P. & Ors.
vs J.P. Chaurasia & Ors., ; ; Kesavananda Bharati vs State of Kerala, [1973] 4 SCC 225 and Bhagwan Sahai Carpenter & Ors.
vs Union of India & Anr.
, ; , referred to.


judgement:
it Petition No. 1389 of 1987.
(Under Article 32 of the Constitution of India).
G. Ramaswamy, Additional Solicitor General, M.K. Rama murthy, Mrs. Shyamala Pappu, K.K. Venugopal, Gobind Mukhoty, M.A. Krishnamurthy, Ms. Chandan Ramamurthy, Dalveer Bhand ari, C. Ramesh, G.D. Gupta, L.K. Gupta, G. Venkatesh Rao, Ms. A Subhashini, Ms. Susma Suri, C.V.S. Rao, P. Parmeshwa ran, Mrs. Urmila Kapoor, Krishna Prasad, Indra Makwana and S.K. Jain, for the Appearing Parties.
The Judgment of the Court was delivered by SAWANT, J.
This petition is filed as stated in the petition by an Association of about 2,000 employees working in 500 Railway Institutes and Clubs in various parts of the country.
Their grievance, as in the case of the petitioners in the matters pertaining the Railway Canteens, is that they are not treated as railway employees.
It is their case that although the Institutes/Clubs in which they work are non statutory, they are on par with the employees in the statu tory canteens run in the Railway establishments proper.
According to them, the Railway Institutes and Clubs were set up to provide recreational facilities to the railway employ ees.
They are managed by Committees consisting of represen tatives of all the members of the Institutes/Clubs elected periodically.
The Institutes/Clubs have the following cate gory of employees: (1) Manager (2) Accountant (3) Clerk (4) Librarian in 596 charge (5) Librarian (6) Watchman (7) Daftry (8) Watermen (9) Canteen employees (10) Billiards Marker etc.
These employees are appointed by the Committee and their salaries are paid out of the contributions received from the members of the respective Institutes/ Clubs and the grants in aid given by the Railway Board to the Institutes/Clubs.
The Committees of management is presided over by a president who is the concerned Divisional Railway Manager or his nominee.
The Railway Administration has the right to dissolve or to from an ad hoc Committee.
According to the petitioners further, the Railway Board has always treated the Institutes and Clubs as an integral part of the Railways, since they not only receive grants in aid but also other facilities from .the
Govern ment.
Section B of Chapter XXVIII of the Railway Establish ment Manual makes a special provision for the Institutes and Clubs.
Paragraph 2808 of the Manual states that a Railway Institute should be looked upon as a club provided by the Railway, rent free for the benefit of its employees and therefore, the Railway should provide everything which a landlord ordinarily would, and the Institute should pay for all that a tenant would usually be liable to pay.
Paragraph 2809 states that the Railway Administration will bear (a) the first cost of the building including the cost of elec tric installations with necessary furniture, roads, fences, tennis courts and other play grounds.
Wherever possible a garden will also be provided; (b) the cost of maintenance and alterations.
In the case of tennis courts and play grounds the Rail way Administration will bear only the cost of ordinary engineering repairs.
The said paragraph however requires that the Institute funds should bear (a) the cost of roll ing, watering, grass cutting and other maintenance charges of play grounds, other than engineering repairs; (b) the cost of maintenance of its gardens and ornamental grounds; (c) the cost of maintenance and renewal, whether partial or complete, of electric installations (which include electric fans) payable at a flat rate of 5 per cent per annum on the capital cost of the installations; (d) the cost of electric current consumed and hire of meter; (e) the occupier 's share of municipal taxes for specific direct services rendered to an Institute by a municipality such as conservancy, water and the like taxes as distinct from taxes of a general nature; (f) water charges calculated at so much per tap, each Railway Administration fixing its own scale of charges.
In cases where large quantities of water are supplied by the Railway Administration, as in the case of swimming baths, the actual cost of water supplied should be recovered.
Para 597 graph 2810 provide that: (i) no rent is recoverable in the case of Railway buildings used as officers ' club provided conditions stipulated para 1942 E are fulfilled; (ii) no rent is recoverable in the case officers ' clubs if the buildings are specially constructed against amounts specifi cally sanctioned by the Railway Board (iii) no rent is recoverable in the case of clubs, if additional expenditure is incurred in converting an existing building into a club or providing anciliaries to make it suitable as a club.
if the expenditure is incurred with the specific approval of the Railway Board and (iv) no rent is recoverable in the case of clubs where the building is erected by the club at its costs on Railway land.
Paragraph 28 11 further provides that: Class IV staff employed in Railway Institutes may be given residential accommodation free of rent provided such accommodation is either part and parcel of the Institute building and its recognised out houses, or is not required for any other railway purpose, or cannot be rented to out siders and would otherwise lie vacant.
According to para graph 28 13 the membership of the Institute/Club is option al.
Paragraph 28 17 gives powers to the respective General Managers to frame rules to suit local requirements of the Railway Administrations and other circumstances of the place.
The employees of the Institutes/Clubs are entitled to free passes, and to get medical facilities provided by the Railway Hospitals.
The employees belonging to Class IV are eligible for absorption in the Railways and for that purpose they are given relaxation in age.
The petitioners, therefore, claim that they should be treated on the same par as the employees in statutory can teens and non statutory canteens there being no difference in their status.
The petition is resisted on behalf of the respondent Union of India.
According to the respondents, the Institutes and Clubs have their origin in the rules regarding Staff Benefit Fund which is provided for in Chapter VIII of Rail way Establishment Code Vol. 1 (1985 edition).
According to the rules contained in this Chapter as clarified/ modified by the administrative instructions from time to time.
the main objectives of the Fund are to provide additional ameni ties to the railway servants and their families in the sphere of education, recreation, relief to the distressed, financial assistance during sickness and development of sports and scouting activities.
The Fund consists of contri bution from Railway revenues at the rate of Rs. 14 per capita of the sanctioned strength of non gazetted employees as on 3last March of each year.
The contribution of Rs. 14 is broadly apportioned amongst 598 various spheres of activities as under: (i) (a) Education 2.50 (b) Recreation other than sports 2.00 (c) Relief of distress, sickness etc.
3.50 (d) Miscellaneous items 0.50 (ii) Sports activities 2.50 (iii) Scouts activities 1.00 (iv) Recreational facilities to officers 2.00 and supervisory staff According to the respondents further, as per the provi sions of the Railway Establishment Code and the Establish ment Manual, the Institutes and Clubs are managed by a committee representing its membership.
It is the Managing Committee which engages such staff as is required and meets the cost of their wages and allowances.
The conditions of service including the scales of pay of the staff are decided upon by the respective Managing Committees and hence they vary from Institute to Institute and Club to Club.
The cost of the staff running the institute including the pay bill of the staff is met by the Managing Committee from membership fees and from grants received from the Staff Benefit Fund.
As will be evident from the apportionment of the per capita grant among the various activities, only a sum of Rs.4 per capita comes to the share of the recreational facilities.
The funds available for recreational facilities are further limited because the membership of the Institutes/Clubs is optional.
These facilities further, in the nature of things, are availed of by the members for a few hours beyond working hours.
The Managing Committees therefore, engage only part time staff.
They engage full time staff only when it is considered absolutely necessary.
There are about 449 Insti tutes and 332 Clubs and they have engaged about 1741 employ ees of whom about 887 are on full time basis, the rest being engaged on part time basis.
The whole time employees are allowed passes and Privilege Ticket Orders on a restricted scale in terms of para 1526 of the Railway Establishment Manual.
It is, therefore, contended on behalf of the respond ents, that the Railways are not the principal employers of the staff engaged in the Institutes/Clubs and they have no control whatsoever on it.
The staff is not paid directly from the Consolidated Fund of India.
Whatever facilities are provided to the whole time staff are provided only as a 599 special case, and not on account of any obligation under any law.
It is also contended that in fact it is the Managing Committees who have engaged the staff and they ought to have been joined as parties to the petition.
The respondent Union of India having no relationship with the employees, the petition is liable to be dismissed on account of non join der/mis joinder of parties.
The respondent have also ques tioned the locus standi of the present Association to file the petition since according to them no such Association exists.
The respondent further point out that the Managing Committees of the Institutes/Clubs do not receive any subsi dy or loan from the Railways for meeting specifically the wage bill of the employees as do the Managing Committees of the statutory/non statutory recognised canteens and, there fore, the present employees stand on a different footing than that of the employees in the statutory/non statutory recognised canteens.
In reply to the contention of the petitioners that the rules framed for the constitution of Managing Committees of the Institutes/Clubs give power to the Railway Administration to dissolve the Managing Commit tees or to appoint ad hoc Committees, it is pointed out that these rules are framed locally by General Managers of Zonal Railways, Production Units etc.
in terms of the provisions contained in para 2817 of the Establishment Manual.
They are not uniform and not all rules so framed provide for either the dissolution of the Managing Committee or appointment of ad hoc Committee by the Railway Administration.
The respond ents also deny that the Railway Board has treated Insti tutes/Clubs as an integral part of the Railways.
It is also pointed out that the Railway free passes and privilege ticket orders are given only to the full time employees as a special case.
But even they are given on a restricted scale.
As regards the medical facilities, again, it is pointed out that it is given to the employees and not to their family members or dependent relatives.
As regards the facilities of absorption in the Railways by relaxing the age limit, the respondent points out that it is not only this staff but also the staff of cooperative societies, canteen commission bearers, vendors of departmental canteen who are eliteble for such relaxation in age limit to the extent of the serv ice rendered in such organisation whichever is less, for appointment in Group D categories.
But they have to appear before Railway Service Commissions/Railway Recruitment Board alongwith casual labourors and substitutes, and they are considered only after the eligible casual labourers and substitutes are considered.
It is lastly submitted on behalf of the respondents that although there is no obligation on the Railways, the Railways have issued administrative in structions to the Zonal Railways etc.
that whenever it is found 600 absolutely necessary by the Managing Committees of the Institutes/ Clubs to employ staff on full time basis they should be paid remuneration keeping in view the local market conditions.
It is also the contention of the respondents that the Railways are providing financial assistance/grants in aid for various non welfare activities and to non railway agen cies such as private schools run in the railway colonies, cooperative societies/banks etc.
Since the employees engaged in these activities/non railway organisations do not ipso facto become railway servants, the employees of these Insti tutes/Clubs can also not become the railway employees for the same reason.
The service in the railway Institutes/Clubs is purely in the nature of private employment.
On the other hand, the railway employees are recruited according to the rules of recruitment.
They are subjected to rigorous stand ards with regard to age limit, educational qualifications, medical fitness, interviews, character verification etc.
as well as to stiff competition.
To treat the employees in Railway Institutes/Clubs as railway employees would amount to a back door entry of these employees to Government serv ice without following the regular procedure.
It is also contended by them that the letters of appointment offered to these employees by the respective Managing Committees make it clear that they are not to be treated as railway serv ants.
For all these reasons, these employees form a separate class and they are not comparable with any other category of staff of the Railways.
It is also submitted on behalf of the respondents that the analogy of the employees in railway canteens is not applicable to these employees because the status of the canteen employees is itself being contested by the respondents.
It is lastly contended that if this Court deems it proper to treat the full time employees of the Institutes/Clubs as railway servants it will have to be left open to the Respondents to frame such rules as it considered necessary for the efficient running of the Institutes/Clubs and for engaging such staff as are considered necessary.
If the employees concerned are then directed to be absorbed only subject to the requisite standards of age, educational qualifications etc.
and only such of them as are found suitable, many of the present employees may be faced with unemployment which will not be in the interests of the employees themselves.
After considering the respective contentions of the parties and the documents on record, we are of the view that there is a material difference between the canteens run in the Railway establishments, and the Railway Institutes and Clubs.
In the first instance, the canteens are invariably a part of the establishments concerned.
They 601 are run to render services during the hours of work since the services, by their very nature are expected directly to assist the staff in discharging their duties efficiently.
The lack of canteen facilities is ordinarily bound to hamper and interfere with, the normal working of the staff and affect their efficiency.
The importance of the services rendered by the canteens to the staff in the day to day discharge of their work therefore needs no further emphasis.
Suffice it to say that the canteen services are today re garded as a part and parcel of every establishment.
So much so that they have been made statutorily mandatory under the in establishments governed by the said Act where more than 250 workers are employed.
The canteen services are thus no longer looked upon as a mere welfare activity but as an essential requirement where sizable number of employees work.
That is why even the Railway Administration has, by its Establishment Manual made a provision for canteens even where the does not apply, and has laid down procedure for their registration and approval and for extending to them almost the same facilities and monetary assistance as in the case of the statutory canteens.
However, the same cannot be said of the Institutes and Clubs.
Although for them also the Railway Establishment Manual makes provisions in the same Chapter XXVIII dealing with Staff Welfare, the provisions are of a materially different nature and pattern.
In the first in stance, there is no provision either for subsidy or loan directly from the funds of the Railway Administration.
The Institutes/Clubs have to run on the membership fees and fixed grants received from the Staff Benefit Fund.
The Fund consists of receipts from the forfeited provident fund and bonus, and of fines.
The grant is made as pointed out by the Respondents, to each Institute/Clubs at the rate of Rs. 14 per capita of the non gazetted staff employed at the rele vant establishment.
Out of this contribution, only Rs.4 per capita are spent on the activities of the Institutes and Clubs, the rest of the amount being spent on education, relief in case of distress and sickness, sports, scouts activities and for other miscellaneous purposes.
There is further no dispute that the wages and allowances of the staff of the Institutes/Clubs are paid by the Institutes/Clubs themselves and they are not subsidised by the Railway Administration as in the case of the statutory and nonstatutory recognised canteens.
By their very nature further the services of the Institutes/ Clubs are availed of beyond working hours only.
It is common knowledge that not all members of the Railway staff avail of them.
One has to be a member to do so by paying fees.
The membership is also optional.
That is why most of the staff employed in the Institutes/ 602 Clubs is part time.
As has been stated by the respondents, out of about 1741 employees engaged in 449 Institutes and 332 Clubs nearly half are part time employees.
The services rendered by the employees are not of a uniform nature.
They are engaged for different services with different, service conditions according to the requirement.
The Institutes/Clubs further do not engage in uniform activi ties, the activities conducted by them varying depending upon the infrastructure and the facilities available at the respective places.
What is more importance as far as the issue involved in this petition is concerned, is that the provision of the Institutes/Clubs is not mandatory.
They are established as a part of the welfare measure for the Railway staff and the kind of activities they conduct depend, among other things, on the funds available to them.
The activities have to be tailored to the budgets since by their very nature the funds are not only limited but keep on fluctuating.
If the costs of the activities go beyond the means, they have to be curtailed.
So also, while starting a new activity, it is necessary to take into account its financial implications and the capacity of the Institute/Club to raise the neces sary funds.
The only varying component of the funds is the membership fee which is uncertain.
If as contended by the petitioner Association the workers engaged in these Institutes/Clubs are treated as Railway employees, the danger is that these welfare activi ties which are otherwise encouraged by the Railway Adminis tration may in course ' of time shrink and cease altogether for want of funds.
This will not be in the interests of the workers themselves.
One cannot lose sight of the fact that today the emoluments of government servants including those of the Railway employees, may they belong to Class IV or to a higher category, are substantial and inhibit fresh re cruitment.
The services rendered by a government agency, therefore, become costly and uneconomical.
Compared to the services which are rendered by the Institutes/Clubs and the benefits which flow from them, an increase in their adminis trative expenditure which may result from granting the status of the railway employees to their workers.
will be disproportionately high and forbidding.
This will also have a snow bailing effect on other welfare activities carried on by the Railways and similar activities carried on by all other organisations.
We also cannot lose sight .of fact that the workers engaged in the welfare activities today are drawn from the respective localities without restrictions of the qualifications of education, age etc.
Whatever little scope for employment is available to the local population at the respective places may 603 also vanish with the cessation of these activities.
After all, the number of employees who may benefit by becoming railway employees does not today exceed 887 who are the full time employees scattered all over the country.
But, they may deprive many of their bread in the presenti and in the future.
For, as pointed out by the Respondents, if the Railway Service Rules are made applicable, many of the present employees will also have to face immediate unemploy ment.
This is of course yet a larger related socio economic consideration.
On the facts placed before us which we have discussed above, we are also not persuaded to hold that there is a relationship o[ employer employee between the Railway Admin istration and the employees engaged in the Institutes and Clubs.
Neither law nor facts spell out such relationship.
If the present service conditions of these employees are unsat isfactory, the remedy lies elsewhere.
lO. Since we are disposing of the petition on merits, it is not necessary to deal with the legal contentions raised on behalf of the Respondents that the petitioner Association has no locus standi and that the petition is not maintain able for non~joinder and/or misjoinder of the parties.
In the result, we dismiss the Writ Petition and discharge the rule with no order as to costs.
R. N.J. Petition dismissed.

dataset_name: IN-Abs

summary/full:
This petition under Article 32 of the Constitution of India has been filed by an Association of about 2,000 em ployees working in 500 Railway Institutes and Clubs in various parts of the country claiming that they should be treated on the same par as the employees in the Statutory Canteens run by the Railway Administration.
In support of their claim the petitioners while enumerating the range of activities handled by them, they have attempted to draw a parallel with the regular employees contending inter alia that not only they receive grants in aid and a number of facilities from the Govt.
, the Railway Board has always treated these institutes and clubs as an integral part of the Railways.
The Respondents resisted the petition stoutly and con tended that the Institutes and Clubs are managed by a Com mittee representing its membership which engages such staff as is required and meets the cost of their wages and allow ances etc., that the Railways are not the principal employ ers of their staff, that they are not paid directly from the Consolidated Fund of India and whatever facilities are provided to them they are confined to the wholetime staff as a special case and not on account of any obligation under any law.
On consideration of respective contentions and documents on record while dismissing the petition, this Court.
HELD: There is a material difference between the can teens run in the Railway establishments and the Institutes and Clubs.
The Institutes/ Clubs have to run on the member ship fees and fixed grants received from the Staff Benefit Fund.
The fund consists of receipts from the forfeited provident fund and bonus, and of fines.
The grant is made as pointed out by the Respondents, to each Institute/Club at the rate of 595 Rs. 14 per capita of the non gazetted staff employed at the relevant establishment.
Out of this contribution, only Rs.4 per capita are spent on the activities of the education.
relief in case of distress and sickness, sports, scouts activities and for other miscellaneous purposes.
There is further no dispute that the wages and allowances of the Staff of the Institutes/Clubs are paid by the Institutes/Clubs themselves and they are not subsidised by the Railway Administration as in the case of the statutory and non statutory recognised canteens.
[600H] 160 [E F & G] On the facts, it cannot be held that there is a rela tionship of employer employee between the Railway Adminis tration and the employees engaged in the Institutes and Clubs.
Neither law nor facts spell out such relationship.
If the present service conditions of these employees are unsat isfactory, the remedy lies elsewhere.
[603B C]


judgement:
ition (Civil) No. 11704 of 1985 etc.
(Under Article 32 of the Constitution of India).
R.P. Gupta for the Petitioners.
V.C. Mahajan, Ms. A. Subhashini, B.K. Prasad, C. Ramesh and Hemant Sharma for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
These two writ petitions were filed as 452 early as 1985 but they are still at the admission stage.
However notices have been issued to the respondents and we have heard counsel on both sides.
As both the writ petitions relate to the same subject matter, it will be convenient to dispose of them by a common order and we proceed to do so.
The controversy in these writ petitions is as to the proper principle for determination of seniority in the Transportation (Traffic) Department of the Indian Railways.
Though the petitioners in Writ Petition No. 11704 of 1985 belong to the Central Railways, the principle to be deter mined will have application over all nine Railways in the country and is being agitated in Writ Petition No. 12802 of 1985 by the All India Train Controller 's Association.
The officials with whom we are concerned in these writ petitions occupy Group C (Class III) posts in the above department.
The question of their inter se seniority has become material for their promotion to Group B (Class II) posts which really form the lowest rung of the management cadre.
75% of the vacancies arising in Group B (Class II) posts in each de partment are filled in by promotion on selection from among Group C (Class III) employees of the department on the basis of seniority cum merit.
The difficulty in determination of the inter se seniority arises because there are different streams of eligible Group C (Class III) employees, occupying posts with different scales of pay, who have to be consid ered for selection to Group B posts.
As only those employees from the different streams can be considered as fail within the zone of consideration as per seniority and as the zone of consideration is determined with reference to the number of vacancies in Group B for which the selection is held at any point of time, the position of an employee in the com bined seniority list of all the streams assumes great impor tance.
We are concerned with the selections for appointment to three Group B posts in the Operating Branch of the Traffic and Transportation Department.
These are: Assistant Operat ing Superintendent, Assistant Traffic Superintendent and Station Superintendent.
The four Group C streams which have the avenue of promotion to the above group B posts are: (1) The Control Stream, which consists of the Chief Controller, the Deputy Chief Controller and the Section Controller; (2) The Traffic Stream, which comprises of the Station Master, the Yard Master, Traffic Inspector and Signaller; (3) The Ministerial Stream, consisting of office staff and (4) The Running Stream, consisting of Guards.
We are here concerned only with the question of inter se seniority between the employees in the Control 453 Stream and those in the Traffic Stream.
As mentioned earlier, there are several grades and scales of pay prevailing in each of these streams.
It will be helpful to tabulate them here for convenient reference: Control Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Chief Controller360 500 450 575 450 575 8501040/1200 Deputy Chief 400 500 300 400 370 475 700 900 Controller Section Con troller Grade I 300 350 260 350 335 425 ) ) 470 750 Grade II 200 300 200 300 270 380 ) Traffic Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Station Supdt./120 165/) Jn.
S.M./CYM/80 160/) 300 400 450 575 700 900 TI (Higher) 200 300 ) Stn.
Master (Higher) Dy.
Supdt.
80 160 300 400 370 475 550 750 /YM/TI (Lower) SM (Lower) 60 65 80 170 130 225 330 560 Grade and others 80 120 100 185 205 330 425 640 150 225 200 300 250 380 455 700 260 350 335 425 550 750 The zone of consideration of the employees for promotion is fixed in the order of the combined seniority of the employees from the 454 different streams.
In each of the streams, seniority depends on the grade.
Normally, employees working in a higher grade on a regular basis are senior to those working in the lower grade.
To illustrate, the highest Group C grade was Rs.450 575 followed by the grades Rs.370475, Rs.335 485, Rs.335 425 and so on.
(We are referring here to the old pay scales which have since been revised).
The employees working in the grade Rs.450 575 were therefore placed on the top followed by those in the grades of Rs.370 475, Rs.335 485 and Rs.335 425.
This principle for determination of inter se seniority worked very well till 31.12.72 as the higher scales of pay in both the streams was the same.
According to the department, it became difficult to follow this principle when, consequent on the acceptation and implementation of the recommendations of the Third Pay Commission with effect from 1.1.
1973, higher or lower scales of pay came to be fixed in respect of certain posts which were having the same scale of pay upto 31.12.1972.
For example, the scale of pay of Rs.450 575 held by Station Masters and Traffic Inspectors in the Traffic Stream upto 31.12.72 was upgraded to the scale Rs.700 900 with effect from 1.1.73.
On the other hand, in the case of Chief Controllers of the Control Stream, the same scale of Rs.450 575 was replaced by a scale of Rs.840 1040/1200.
Similarly, in the case of Station Masters and Inspectors in the grade of Rs.370 475 in the Traffic Stream, the replacement was by the scale of RS.550 750 while in the case of Deputy Chief Controllers on the scale Rs.370 475, the replacement scale was Rs.700 900.
Thus the Control Stream gained an upper hand in the matter of seniority and, consequently, of promotions.
In an attempt to restore some balance and parity between the employees of the different streams, the Railway Board issued certain instructions on 26th October, 1976.
As per these instructions, the inter se seniority of the staff working in the grade of Rs.700 900 and the grades,above it in the different streams was to be based on the total length of service rendered by an employee in all the grades.
This did not satisfy all sections of the staff and difficulties were also experienced in applying the instructions.
For example, a Deputy Chief Controller, who had been in the grade of Rs.370 475 upto 31.12.72 and was placed on Rs.700 900 from 1.1.73, gained an advantage over his collegues in the other stream viz. the Station Masters and Traffic In spectors.
The matter was therefore reconsidered and modified instructions were issued on 11.7.77.
According to these instructions, for purposes of drawing out the combined seniority of Group C employees from different streams, the services rendered in the top most scale in one stream would be considered equivalent to the service rendered in the 455 top most scale in the other streams, even though the top most scale in the two streams might be different.
This rule also produced anomalies.
For example, if in one stream, the top most scale was Rs.700 900, in another Rs.550 750 and in yet another Rs.840 1040, the length of service rendered in all these grades by the employees was stated to be the basis to determine the combined seniority.
Thus an employee having ten years of service in the top most scale of Rs.550 750 in one stream would rank senior to another having slightly less than ten years of service in the top most scale of Rs.700 900 in another stream.
The Department, therefore, issued revised instructions in August '78/ February '79.
As per these instructions, where the top most scale prior to 1.1.1973 has been replaced by two different scales after 1.1.73, one higher and the other lower, service rendered in the lower scale will be notionally stepped up as if the service had been rendered in the higher scale.
For example, the grade of Rs.450 575 was replaced by Rs.8401040 for the Controllers and Rs.700 900 for Station Masters and Traffic Inspectors.
While drawing up the combined seniority, the service ren dered in the grade of Rs.700 900 by the Station Masters and Traffic Inspectors was to be treated as service rendered in the grade Rs.840 1040.
Similarly, the pre revised grade of Rs.370 475 had given rise to two scales, namely, Rs.700 900 and Rs.550 750, and, in that case, the service rendered in the grade Rs.550 750 was notionally treated as rendered in grade Rs.700 900 for drawing up the combined seniority.
This principle did not work well either.
It seems the circulars of 11.7.77 and August '78 were quashed by the Bombay High Court in W.P. No. 55 of 1980 by its order dated 14.12.83.
In the meantime, detailed consideration of the issues was undertaken in consultation with the federations of organised labour and it was finally decided that the combined seniori ty for purposes of Group B selection should be determined on the basis of the total length of service rendered by employ ees in any or in all the grades commencing from Rs.700 900 and above and these instructions were issued on 5.3.83.
In January 1984.
further instructions were issued which, while maintaining the principles laid down on 5.3.83, provided protection to senior employees, who got superseded in a stream for promotion to the higher nongazetted grade in that stream.
For example, if an employee in grade of Rs.700 900 supersedes one of his seniors in promotion to the grade of Rs.840 1040 within the stream, he would control the seniori ty of the employee whom he had superseded.
Such a superseded employee would be put to hardship when the combined seniori ty is drawn up along with employees from the other streams for purposes of selection to Group B.
In order to avoid the situation of a senior employee being subjected to such disability, instructions were issued on 6.1.
1984 that 456 an employee who supersedes his senior will be credited with the service of the senior whom he had superseded.
Aggrieved by these experiments which, according to them, only resulted in chaos and confusion, 45 employees of the Control Stream filed WP 11704/85 when, on the issue of a list published by the administration on the basis of these instructions on 15.6.85, they found themselves excluded from the panel of staff to be taken into consideration for promotion to Group B. They prayed that the circular of 6. 1.84 and the follow up action culminating in the Selection List be also set aside.
The petitioners are also aggrieved by a different set of steps initiated by the Railway Board.
A further discrimina tion against the control stream, it is alleged, has resulted from two circulars issued by the Board, one on 29.7.83 and the other on 26.12.83.
These circulars envisaged, what the petitioners call, "mass upgradations" and what the circulars call a "restructuring of the cadres".
The earlier of the two circulars applied to the traffic stream.
In so far as is relevant for our present purposes, the "upgradation" was on the following lines: Name of Existing Revised Revised Percentage Rema post scale Designation Scale of posts marks Yard Masters 455/700 Dy.
Chief 700 900 20% /Asst.
Yard Yard Masters Masters Yard Masters 550 750 Chief Yard 840 1040 10% of Masters post in scale of 700 900 Station 455 750 Station 700 900 10% Master Supdt.
Station 350 750 Station 840 1040 10% of Supdt./ Supdt.
posts in Station scale of Master Rs.700 900 2 Separate 700 900 43.5% This we Cadre of (10% of told, has Station these 'll not been 457 Masters/ carry scale given Asstt.
of Rs.840 effect Station 1040 to.
Superin tendants The circular stated that this restructuring will be with reference to the sanctioned strength as on 1.8.83.
The staff, who will be placed in the revised grade in terms of these orders will be eligible to draw pay on the higher grades from 1.8.83 with benefit of proforma promotion from 1.8.82.
It was made clear that the benefit of proforma fixation will be admissible only to the staff who are placed in the vacancies arising directly as a result of these restructuring orders.
The date of proforma fixation has later been shifted, from 1.8.82 to 1.8.83 by a circular dated 13.7.
The second circular, dated 20.12.1983 pertained to the control stream.
The restructuring was on the basis of the cadre strength as on 1.1.84 and the revision of scales was also to be effective from 1.1.84.
The pattern of restruc ture, in so far as it is relevant for our present purposes, is set out thus in the schedule: Existing Grade & Posts Existing Revised percentage percentage (i) 470 750 Not laid 15 (Section Controllers) down (ii) 700 900 " 58 ] (Dy.
Chief Controllers) ] ] ] ] (iii) 340 1040 " 23 ] 85 (Chief Controller ] Gr. II) ] ] ] (iv) 840 1200 " 4 ] (Chief Controller Gr.
II) 458 It was made clear that the cadre has been restructured keeping in view additional duties, responsibilities and heavier workload in some of the charges and that the revised grades were to be given to employees eligible therefore on such considerations in their existing positions.
Reference must be made to two more circumstances before we deal with the contentions urged before us.
The first is that the circular of 6.1.84 referred to above which, accord ing to the counsel for the petitioner introduced the princi ple of "chance seniority" was quashed by the Central Admin istrative Tribunal by its order dated 5.2.1988.
A copy of this order has not been made available to us.
Secondly, consequent on the said decision of the Tribunal, the Railway Board issued certain instructions on 22.12.88 which reads thus: "Consequent upon the judgment given by the Central Adminis trative Tribunal in connection with the above, matter has been reviewed in consultation with the representatives of the recognised organised federations and it has been decided in partial modification of the orders contained in Railway Board 's letters . . dated 28.5.83 and 6.11.84 that the integrated seniority of group C employees for promotion to group B posts should be determined on the basis of con solidated length of non fortuitous service rendered in the grade of Rs.700 900/2000 3200 and above ignoring promotions to the grade of Rs.840 1040/23753500 . " It may be mentioned that the petitioners were fully satisfied with the circular of 5.3.83 which according to them, gave effect to rule 321 of the Indian Railway Estab lishment Manual.
According to them, this equilibrium was unjustifiably disturbed by the circulars issued subsequent ly.
The principal grievance urged before us by learned counsel for the petitioner was that, as a result of the restructuring orders read with the order reckoning all persons working in salary grades of Rs.700 900 and above as one group for determining seniority, the control stream staff has been adversely affected to a considerable extent.
He points out that persons in the Traffic Stream who entered the supervisory grade of Rs.470 750 were placed in the grade of Rs.700 900 much later than the dates when those in the control stream entered the corresponding scale of Rs.455 700 will gain seniority over the latter.
He asks us to compare for this purpose the positions of officers in the control stream with seniority positions Nos. 90 to 190 with those occupying seniority positions Nos.
61 to 208 in the traffic 459 stream.
He contends that the staff employed in the control stream lose both monetarily as well as in terms of seniority by being placed in the scale of Rs.700 900 only w.e.f. 1.1.84 as compared to those of the traffic stream who re ceive such promotions and pay scales w.e.f. 1.8.83.
Leaving aside the question of monetary benefits for the time being, the submissions are: (i) that seniority should be determined on the total length of service as envisaged in rules 202 and 321 of the Indian Railways ' Establishment Manual, which read thus: "202 For selection to class II posts or Civil Engg.
Trans portation (power) and Mechanical Branch, Transportation (traffic) and Commercial, Signal and Telecommunication, Electric and Stores Department.
(i) Only permanent staff will be eligible (ii) all staff in grade Rs.335 425 and above provided they have rendered a minimum of 3 years non fortuitous service after reaching the stage of Rs.335 either in those grades or in a lower grade.
321 Relative Seniority of employees in an intermediate grade belonging to different seniority units appearing for a selection/non selection post in higher grade. 'When a post (selection as well as non selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employee shall be determining factor for assign ing inter seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employees with longer length of continuous service.
This is subject to the proviso that only non fortuitous service should be taken in account for this purpose." (ii) that if all the grades in the eligible groups are to be clubbed together, the seniority should be reckoned as and from the date of entry into the lowest of the grades in Group 'C ' (class III) viz. Rs.470 750/455 700; 460 (iii) that even if the mass upgradations are to be upheld on principle, they must be directed to be made effective from the same date (whether it be 1.8.83 or 1.1.84) in respect of both the streams and should not be on different dates.
(iv) that the whole object and purpose of these circulars is to obliterate the effect of the recommendations of the Third (and even the Fourth) Pay Commissions, after assessing the duties and responsibilities of the staff in both streams, that the staff on the control stream deserve higher scales although these recommendations have been duly accepted and implemented by the Government.
According to the learned counsel, the traffic stream has a huge strength and a powerful union and, pressurised by their numbers, the Railway Board is attempting to take away, indirectly, the benefits given to the control stream by the Pay Commission 's recommendations and that too at a point of time when a fresh Pay Commission was in the process of being constituted.
Counsel also alleged that the All India Con trollers ' Association (which has filed writ petition No. 12802 on similar lines) has not been consulted at any stage and these circulars are being issued at the behest of the unions of the traffic staff and despite the representations and protests of the comparatively weaker union of the con trol staff.
On the other hand, Sri V.C. Mahajan, learned counsel for the Union of India, submitted that the petitioners have not placed any data before the Court to make out a case of discrimination.
He submits that after the Writ Petitions were filed in 1985 the Department has issued a circular dated 27.12.88 and a combined seniority list in March 1989.
The petitioners have not taken any steps to amend the Writ Petition to challenge this circular or this list or to show in what respect and to what extent the rights of the peti tioners have been prejudiced by the restructuring orders.
Turning to the "restructuring" circulars, counsel points out that in this case the Government has been hard put to evolve an equitable formula for fair promotional chances to the two sets of people in question.
Various attempts had been made earlier but they were not successful.
Finally the present formula has been evolved after consulting all the concerned unions.
It is not correct, he says, to say that the deci sions have been taken without consulting the representatives of the Controlling Stream.
It is submitted that, having regard to the few posts at the top of the scale, the Traffic Stream had been complaining of inadequate promotional oppor tunities.
The 461 Government has tried to solve the problem as best as it could and counsel refers to the following basic features behind the restructuring: (i) The date of entry into grades Rs.700 900 above will be taken as the starting point to reckon seniority.
This is the effect of the circular of 22.22.88 the validity of which has not been challenged in the petition.
(ii) Considering the large strength of employees in the Traffic Stream, viz. 4430, about 10% of the posts have been upgraded which will mean that about 443 persons will be in the above grades.
So far as the Control Stream is concerned, the percentage of posts in the above zone has been increased to about 35% of the 270 posts available with the result that about 211 people will be in the above grades.
As a result of the mass upgradation, a large percentage of people in the Control Stream immediately derive monetary benefits.
They have accepted these benefits and have been occupying the upgraded position since 1984 onwards.
(iii) The date of the upgradation in both the streams cannot be the same for the result of it would be that all the upgraded personnel will have seniority reckonable from the same date.
This being the position, their seniority will have to be based on the length of their services in the immediately lower scales or reckoned as from the date of their entry into the lowest of the Group C grades and this would, have revived the same problem which the Government was trying to solve.
That is why the Government fixed dif ferent dates for the two streams separated only by a short span of five months and this was neither unreasonable nor discriminatory.
Counsel submits that the Government was trying to forge out a solution that will be fair 'to both the streams and that the attempt of the petitioners to accept the upgrada tions of the scales in their stream but objecting to the other part regarding date of fixation should not be allowed to succeed.
He submits that if the petitioners were prepared to accept the same percentage of upgradation as the Traffic Stream persOnnel and give up the extra benefits received, the Government could reconsider the whole question afresh.
After hearing both counsel, we have reached the conclu sion that the materials before us are totally inadequate to come to any conclusion on the true impact of the circulars, In fact, to start with, we were 462 of the view that, in a matter like this, the proper remedy of the petitioners is to approach the Central Administrative Tribunal which has been set up for that very purpose.
But since counsel for the petitioners pleaded that the writ petitions have been pending here since 1985 and it would not be fair to the petitioners to sent them now to pursue that remedy, we heard the petitioners and the opposite parties at some length but, as will emerge from the above discussion, the exact position and impact of the circulars is very nebulous.
As pointed out by Sri Mahajan, the Department is trying to cope with the problem of giving fair promotional opportunities to two different streams which become eligible for promotion to Group B posts.
Since the counsel for the petitioner has stated that he has no quarrel with the circu lars of 5.3.83 and 22.12.88 and since the circular of 6.1.84 already stands quashed by the Central Administrative Tribu nal, the only grievance of the petitioners that survives is against the upgradation circulars.
Apart from the merits, there are three difficulties in considering the plea of the petitioners that the part of the two circulars fixing dif ferent dates of upgradation should alone be set aside: (a) The plea of the petitioners, if accepted, will affect a large number of persons in the traffic stream and even result in a number of reversions in all the Railways.
Though the petitioners have made some persons in the traffic stream working in the Central Railway parties, neither the persons likely to be affected in other parts of the country nor their union have been made parties.
(b) As discussed above, the circular of 20.12.83.
confers substantial benefits on members of the control stream.
A large number of them have been able to secure an upgradation to the scale of Rs.700 900 which, otherwise, may not have come to them for sometime, and they may or may not all be affected adversely by the date of upgradation.
It is also pointed out that upgradation in the traffic stream are subject to selection on the basis of a written test and viva voce, while the upgradations in the control stream are automatic based on seniority cum suitability.
It is, there fore, not clear even whether the All India Controller 's Union is speaking in one voice for all its members either for or against the circular of 20.12.83.
(c) As pointed out by Sri Mahajan, the Department has issued a seniority list in pursuance of its circular.
No attempt has been made to substantiate the grievances of the peti tioners by pointed factual references to that list.
463 Coming to the merits again, the inequity is not appar ant.
Having to deal with two different streams, differently placed, the Government has to find out an equitable solution and it has been groping towards it.
One method would perhaps have been to have fixed quotas for promotion from each of the streams but that is not necessarily the only method.
An alternative method is being attempted here and the princi ple that grades of Rs.700 900 and above should be considered together being conceded the Department is trying to give some weightage by granting upgradation to each stream based on its total strength in order to balance the promotional chances in both the streams.
It is possible that some indi vidual cases may be affected but no answer to the question whether any class discrimination has resuited can be given unless fuller details are available and the practical impact of the latest position is placed before us.
If a good number of persons in the control stream are benefitted monetarily despite the disadvantage to a few, in the matter of promo tion, it may be a question how far the Association of the Controllers will be able to make out a case of class dis crimination.
Even if we assume that the entire control stream would be adversely affected, the question will still remain whether the basis of differentiation is justified in the circumstances or amounts to arbitrary discrimination.
We express no opinion on these questions at this stage.
We would only say that, in the absence of adequate material before us, we are unable to reach any conclusion on the plea of discrimination.
We, therefore, dismiss the writ petition but we will leave it to the petitioners, if so advised, to move the Central Administrative Tribunal, with fuller facts and in the light of the latest developments, for appropriate relief after impleading all affected parties or their repre sentatives so that the entire picture may emerge and a just conclusion arrived at.
Y. Lal Petition dis missed.

summary/full:
These writ petitions have been fried by Group 'C ' (class III) employees of the Railways working in its Transportation (Traffic) Department.
The said Department has different streams e.g. 'Control Stream ' and 'Traffic Stream ' and the employees working therein have different scales of pay.
For purposes of their promotion to Group B posts, it was neces sary to fix their inter se seniority, as only those employ ees from the different streams could be considered for promotion as would fall within the zone of consideration as per seniority list.
As the zone of consideration is deter mined with reference to the number of vacancies in Group B for which selection is held, at any point of time, the position of the employee in the combined seniority list of all the streams is important.
The zone of consideration of the employees for promotion Is fixed in the order of the combined seniority of the employees from the different streams.
The Department prior to the implementation of the recommendations of the Third Pay Commission fixed the inter se seniority of the employees of Group C employees on the basis of the grade i.e. employees working In a higher grade on a regular basis were treated senior to those working in the lower grade and the said principle worked well until the enforcement of the recommendations of the Third Pay Commis sion w.e.f.
1.1.1973, when higher or lower scales of pay came to be fixed in respect of certain posts which were having the same scale of pay upto 31.12.1972.
This presented difficulty in fixing the inter se seniority of the employees and the Railway Board in order to resolve the difficulty issued circulars from time to time indicating how their seniority should be fixed but for some reason or the other, the dissatisfaction amongst the employees in the matter of seniority continued.
Being aggrieved by the experiments which according to the petitioners only resulted in chaos and confusion, employees of the Control Stream have flied the writ petition on the Issue of a combined seniority list published by the administration on the basis 451 of instructions on 15.6.85, as they found themselves exclud ed from the panel of staff to be taken into consideration for promotion to Group B. They pray that the circular dt. 6.1.84 and the follow up action taken culminating in the Selection List be set aside.
The petitioner challenge the validity of two circulars issued by the Board, one on 29.7.83 and the other on 26.1.2.1983, restructuring the cadres as discriminatory as according to them they envisage 'mass upgradation ' to their detriment.
The question for determination is whether the principle adopted on the strength of these circulars for fixing the inter se seniori ty of these employees is proper.
Dismissing the writ petitions with liberty to the Peti tioners to move the Central Administrative Tribunal, if so advised with fuller facts, this Court, HELD: The inequity is not apparent.
Having to deal with two different streams, differently placed, the Government has to find out an equitable solution and it has been grop ing towards it.
One method would perhaps have been to have fixed quotas for promotion from each of the streams but that is not necessarily the only method.
An alternative method is being attempted here and the principle that grades of Rs.700 900 and above should be considered together being conceded the Department is trying to give some weightage by granting upgradation to each stream based on its total strength in order to balance the promotional chances in both the streams.
It is possible that some individual cases may be affected but no answer to the question whether any class discrimination has resulted can be given unless fuller details are available and the practical impact of the latest position is placed before the Court.
[463A C]