1. The petitioners in these six writ petitions are the employees of the Andhra Pradesh State Electricity Board belonging to various categories. W.P. No. 9772/83 is filed by 'Andhra Pradesh Power Diploma Engineers' Association' Similarly, W.P. No. 12298/84 is preferred by the A.P. State Electricity Board Employees' Union. The other four writ petitions are filed by individual employees. The grievance, however, is common, and arises from the manner in which the revised pay scales were fixed under B.P.Ms. No. 878, dated 5th October 1981 as modified by Board memo dated 11th October 1983.
2. On 5th October 1981, a Memorandum of Settlement was arrived at and signed by the management and two Employees' Unions under Section 18(1) of the Industrial Disputes Act, read with Rule 64 of the A.P. Industrial Disputes Rules. Under this settlement, the Unions agreed to accept the offer of the management with regard to pay scales, quantum of Dearness Allowance, House Rent Allowance, City Compensatory Allowance, and fitment benefits and the method of fixation of pay in the revised pay scales, as detailed in Annexures I and II to the said settlement. The HRA and CCA were agreed to be paid at the rates obtaining in the Government. Paragraph 2 of the settlement related to 'principles of fixation of pay and allowances.' It reads thus :
'The pay of an employee will be fixed in the new scale at a point appropriate to his service in the pre-Dearness Allowance merged scales on point to point fixation. He will be given additionally three increments and his new pay will be as follows :-
His pay in the new scale plus fixed D.A. and Variable D.A. at 2% if the pay plus fixed D.A. is above Rs. 500/- and 2 1/2% if the pay plus fixed D.A. is below Rs. 500/- for every 8 points of increase above cost of living index figure of 392. The fixed D.A. will count for all purposes of calculation of D.A., H.R.A., C.C.A., and O.C.A., and other allowances given on percentage basis. It will also count for terminal benefits treating it as basic pay..'.
Then follow certain details with respect to Dearness Allowance, Variable Dearness Allowance and stagnation increments. The settlement further provided :
'It is recognized by both the parties that discipline at all levels is essential for the smooth functioning of the Board. If during the implementation of this agreement any anomalies should arise, they may be brought to the notice of the Board. The Board will take cognizance of the same and take steps to rectify genuine anomalies after due examination ....'.
Annexure-I to the settlement contains the existing and revised scales of pay for both the office staff, as well as O & M and Construction Staff, while Annexure-II deals with Electricity Revenue Office Norms. In pursuance of the settlement, the Board issued B.P.Ms. No. 878, on the same day, prescribing the revised scales of pay for the existing scales, for the Office Staff as well as O & M and Construction staff. By way of illustration, I may refer to a few pay-scales. For L.D.Cs. the existing scale of pay was Rs. 250-8-274-10-454, which was revised to Rs. 490-15-535-20-775-25-875. For U.D.Cs. the existing scale was Rs. 320-12-380-15-575, which has been revised to Rs. 600-15-645-20-845-25-1095. The problem arose because paragraph 5(a) of B.P.Ms. No. 878 contemplates fixation in the revised scales on 'stage-to-stage' basis. The following illustration will bring out the same :
Take A and B, both lower Division Clerks, prior to 1st April 1981. A is senior to B. Both have put in 19 years of service by, say, 31st March 1981, on which date A was promoted as an Upper Division Clerk while B continued to be a L.D.C. On such promotion, the pay of A in U.D.C. category was fixed at Rs. 425/ in the old scale of Rs. 320-575, as on 31st March 1981. On 1st April 1981 the revised pay scales came into effect. By virtue of the aforesaid settlement, and B.P.Ms. No. 878 the pay of B who was drawing the pay of Rs. 424/- in the existing scale of Rs. 250-454 was fixed at Rs. 925/- in the revised scale as on 1st April 1981. This was done by fixing him at the 19th incremental stage in the pay scale, and adding three increments as per B.P.Ms. No. 878. (It may be mentioned that, if by adding increments, even if the pay goes beyond the maximum, that was held to be permissible by Clause (b) of paragraph 5 of B.P.Ms. No. 878).
Now coming to A as stated above, his pay was Rs. 425/- in the U.D.C. category, on 1st April 1981, which represents 9th incremental stage in the existing pay scale, Rs. 320-575. His pay was fixed in the revised scale at Rs. 845/- i.e., by taking into account 9th incremental stage, plus three increments as per B.P.Ms. No. 878 with the result that, while the junior, i.e., B came to draw the pay to Rs. 925/- on 1st April 1981, A, who was senior to B in the category of L.D.Cs., and who was promoted as U.D.C., came to draw only Rs. 845/- Now, if B was promoted as U.D.C. on 1st May 1981, his pay would be fixed at Rs. 945/-, while A continues to draw only Rs. 845/- on 1st May 1981. The same thing happened in all the categories because of the rule of stage-to-stage fixation mentioned in paragraph 5(a) of B.P.Ms. No. 878. This difference and discrimination immediately gave rise to a wave of protest from the affected employees. Representations were also made by the Unions, which I ultimately led to another settlement, which I may, for the purpose of convenience, call the 'Second settlement'. It was signed on 31st December 1982. Paragraph III of this settlement deals with 'rectification of anomaly'. It would be appropriate to read it in full :-
'III. Rectification of Anomaly :
In some cases where juniors in a particular post have been promoted to the next higher post earlier to their seniors for some reasons or the other, and subsequently pay scales have been revised, refixation of salary on the principle of stage-to-stage has resulted in the senior continuing in the lower post drawing a pay higher than the junior who has been promoted. A similar situation sometimes arises even where a senior is promoted both the junior's salary in the refixed scale of pay in the lower post is more. When subsequently the person drawing the higher pay in the lower post is promoted, his pay in the higher post is fixed with reference to the pay he was drawing in the lower post. This has resulted in the senior in the highest cadre drawing a pay (excluding incentives, advance increments, special pay etc.) less than the pay of his junior, as defined above, in that cadre. The Board agrees to review such cases arising out of fixation of pay of workmen in the A.P.S.E. Board revised pay scales O & M and Construction Staff and Office Staff Regulations, 1981, and refix the salary of the senior suitably, duly relaxing the relevant rules so as to protect the pay of the senior with reference to pay of such juniors in the same cadre ...'.
3. In pursuance of the second-settlement, the Board issued Memo. No. DM(IR)/PO2/3/-1/83/2, dated 11th October 1983. Paragraph 2 of this Memo refers to the fact that, in some cases where seniors in a particular category have been promoted to the next higher category earlier to their juniors and the pay scales have been revised subsequently, the fixation of pay has resulted in the junior continuing in the lower category drawing a pay higher than the senior when such junior is promoted to higher category. The operative portion is in paragraph 3, which reads as follows :-
'3. After careful consideration, the A.P.S.E. Board directs that in respect of the type of cases referred to in para 2 above, the pay of the senior will be stepped up in the higher category with reference to the pay of his junior (the seniority being determined with reference to the position in the lower category) and fixed at the same state as that of the junior subject to the following conditions :
i) The pay in the normal scale only is to be taken into account and not pay drawn as a Selection Grade, Special Grade or Special Promotion Grade employee;
ii) Only basic pay is to be taken into account and not additions to pay like personal pay, special pay etc., though these elements may under different orders be taken into account for fixation to pay on promotion;
iii) Basic pay for this purpose will only mean pay drawn in the pre-revised scale and the corresponding stage in the revised scale of 1981 and will not include additions to pay arising out of stagnation increments prior to revision. Similarly, stagnation increments drawn in the revised scale will also not be taken into account for purpose of comparison.
iv) If, in any case, the pay of the promotee is fixed at maximum with personal pay, subject to the conditions in clauses (i) to (iii) above, stepping up of the senior's pay will be limited to the maximum of the scale only.
(v) If the junior happens to draw a higher pay by virtue of the fact that he has been absorbed into a lower category arising out of mutual or unilateral transfer from another office, his case will not be taken into account for purpose of comparison.
(vi) The advantage arising out of the above rectification of anomaly shall in no case exceed one increment in the revised scale in the promoted category'.
4. Clauses (i) to (iv) of paragraph 3 of this Memo substantially meet the petitioners' grievance and are in accord with the second settlement; but, it is clause (vi) of paragraph 3 which limits the benefit contained in clauses (i) to (v) only to one increment in the revised scale, thereby continuing the anomaly, which has given rise to the present writ petitions. Paragraph 4 of the Memo also says that the principal contained in paragraph 3 is effective only from the date of issuance of the said Memo and further that 'as regards cases which have arisen between 1st April 1981 and now, pay may be stepped up nationally with effect from 1st April 1981 or the date of promotion of the junior, whichever is later, arrears being payable only from the date of issue of these orders.' This too is complained of by the petitioners. They say that there is no reason for not paying the arrears and restricting the benefit only from the date of issuance of the Memo. Now, if we turn back to the illustration given above in the light of this Memo, it means that the pay of A is stepped up only by one increment, that too from the date of the Memo, which certainly does not remove the anomaly, nor the discrimination, nor the injustice inherent in the situation. A would continue to draw less than B, whether B continues in the L.D.C. category, or has since been promoted to U.D. category. The same situation applied to the executive staff, like Asst. Engineers and Additional Engineers as well.
5. That the situation aforesaid is unjust and discriminatory is beyond dispute. It is equally beyond dispute that, this has to be remedied. The only question is, how But, before I deal with the methods of redressing this injustice, it is necessary to deal with a submission made by Sri Shanti Bhushan, the learned Senior Counsel appearing for the Electricity Board. He contended that, the first settlement coupled with B.P.Ms. No. 878 constitutes and represents one integral, indivisible, package deal; the Board agreed to the said settlement because it was one package; if the Board were told that the fixation in the revised scales was not to be done on stage-to-stage basis but on some other basis, or no the basis now demanded by the petitioner, the Board would have never agreed to the settlement (first settlement) at all; having entered into a settlement, which is reflected by the simultaneously issued B.P.Ms. No. 878, it is not open to the employees to seek to have the same revised through Court, raising contentions of discrimination or injustice; they must take the whole package, or reject it altogether; they cannot be allowed to take advantage of the beneficial part, and to reject the non-beneficial one. The rule of stage-to-stage fixation contained in paragraph 5(a) of B.P.Ms. No. 878 is inseparable from the rest of the Board Proceeding and if it is held that the said rule is bad, the whole Board Proceedings and settlement must go; it is not possible to sustain or implement the remaining portion of the Board Proceeding. Indeed if the rule of state-to-stage fixation contained in paragraph 5(a) of the Board Proceeding is struck down, a big void is created, which makes the very revised pay-scales scheme unworkable. It will create a defect which is fatal to the entire scheme and, therefore, entire scheme including the settlement and B.P.Ms. No. 878, must go. The learned counsel submits that the second settlement does rectify the anomaly, may be not to the fullest extent; yet, in the absence of any legal or vested right in the employees to such rectification, they must be satisfied with what is given.
6. I am unable to agree. The Board employees are not parties to B.P.Ms. 878; that is issued by the Board on its own. They are parties only to the settlement, paragraph 2 whereof sets out the principal of fixation of pay and allowances. It only speaks of point to point fixation. It will be appropriate to read the first sub-paragraph of para 2 of the settlement, along side paragraph 5(a) of B.P.Ms. 878 : .....
SETTLEMENT B.P.Ms. No. 878 :
'5(a) : The pay of an employee
'The pay of an employee shall be fixed in
will be fixed the revised scale, at a
in the new scale at stage appropriate to the
a point appropriate stage at which pay is
to his service in the drawn in the existing
pre-Dearness scale on 1.4.81 (including
Allowance merged increment due on that
scales on point-to- date if any) on stage-to-stage
point fixation. He basis. After such a
will be given addi- fixation at the appropriate
tionally three stage in the revised
increments .. '. scale, he shall be given
additionally three increments
in the revised
7. It would be immediately evident from a reading of both the clauses that the expression 'on stage-to-stage basis' does not find a place in the settlement. The settlement only speaks of point-to-point fixation, i.e., at a point appropriate to the service of the employee in the pre-Dearness Allowance merged scale. It is, therefore, not correct to argue that stage-to-stage fixation is either based upon, or is an integral and indivisible component of the settlement between the parties. Be that as it may, the more important aspect is this; the first settlement expressly provides for rectification of anomalies arising from the implementation of the settlement. The Board undertook to take cognizance of such anomalies and to take steps to rectify genuine anomalies after due examination. This clause, in my opinion, militates against the package theory now urged by Mr. Shanti Bhushan. If the settlement contains an unalterable, integrated and indivisible package, it is inconceivable that the parties would have agreed to the clause which, in effect, means that the settlement can be amended, varied or altered, if any anomalies arise from its implementation. The settlement does not say, either expressly or by necessary implication, that it is unalterable and final. On the contrary, it expressly provides for modification, in case any anomalies arise in its implementation. Indeed, when anomalies aforesaid were brought to the notice of the Board, it agreed that the anomalies were genuine and, accordingly, entered into the second settlement, whereunder it agreed 'to review such cases arising out of fixation of pay of workmen in the A.P. State Electricity Board Revised pay scales O & M, Construction Staff and Office Staff Regulations, 1981 and refix the salary of the senior suitably, duly relaxing the relevant rules, so as to protect the pay of the senior with reference to the pay of such junior in the same cadre ....'. All this is clearly inconsistent with the argument now put forward. Having entered into second settlement, the Board is bound by it, and ought to implement it. While so, the Memo. dated 11th October 1983 issued by it, purporting to be in pursuance of the second settlement, is certainly not in accord with the second settlement. The Memo engrafts limitations not contemplated by, and not provided for, in the second settlement. Firstly, it limits the benefit to only one increment; secondly, it makes the benefit only prospective. The Memo issued about 9 months after the second settlement cannot prevail over the settlement.
8. Another important circumstance to be noticed in this behalf is that, in the counter-affidavit filed in these writ petitions no such argument (one indivisible package deal) was put forward. All that was pleaded was that, in case the petitioners' contention is accepted, the Board will have to revise the pay scales of 50% of its employees and that, it would be obliged to pay heavy amounts on account of refixation of pay which, in turn, will have to be collected from the consumers. It was stated that such a course would upset the entire budget of the Board.
9. The above circumstances, coupled with the fact that there are no words in the first settlement indicating that it was 'one integral, indivisible package deal', go to show that the argument now addressed before me does not merit acceptance. In this view of the matter, the argument as to inseparability also does not arise for consideration. The very agreement to rectify the anomalies arising from implementation of the settlement is itself a complete answer to the said argument. The Board files relating to the first settlement have also been placed before me, and there is nothing to show that the first settlement was understood or taken as one integral, indivisible package deal; the files only disclose that the Board officials were estimating the probable additional commitments which the demands of the workmen would involve. In this view of the matter, I think it unnecessary to refer to the principles enunciated by the Supreme Court in R.M.D.C's case - Bennett Coleman Ltd. v. Union of India, : 1SCR930 , governing severality.
10. Now coming back to the main question, viz., how to rectify and redress glaring injustice and discrimination, Mr. Shanti Bhushan contended that, neither Art. 14 nor Art. 16 empower this Court to direct the revision to pay of a senior so as to ensure that he does not draw less than his junior. He contended that no such principle is implicit or inherent in the said Articles. Indeed, he contended that such a situation is not necessarily violative of Art. 14 or Art. 16. For this purpose he placed reliance upon the decision of the Supreme Court in A.P. Government v. V. J. Cornelius, : 2SCR930 . Counsel contended that, this decision, by the necessary implication, means that an anomaly of the nature complained of herein is not discriminatory, or violative of Art. 14 Let me examine the facts of that case.
11. The Governor of Andhra Pradesh made sub-rule (2) of Rule 5 of the A. P. Revised Scales of Pay Rules, 1969, providing that the pay of an employee promoted to the Selection Grade shall be reduced to the pay drawn by his senior in his promoted category. This the Government sought to do with a view to remove the grievance of the seniors promoted to higher category that their juniors, who were not promoted to higher category but were only put in the Selection Grade in the lower category were drawing salary higher than themselves. But, this Court and the Supreme Court found that the said Rule offends, and is contrary to, Fundamental Rule 22(a), which says that a person appointed to a particular post is entitled to the salary admissible to that post. This Court struck down Rule 5(2) as being violative of Articles 14 and 16 of the Constitution, and also being not in conformity with F.R. 22(a)(ii). The Supreme Court affirmed the judgment of the High Court and directed the Government to refix the pay ignoring sub-rule (2) of Rule 5 aforesaid, as if it never existed. On the basis of the above facts, Mr. Shanti Bhushan contends that, it is not unusual, nor is it unlikely, that situations may arise where a senior who is promoted to a higher category may come to draw salary less than his junior who continues in the lower category, and that such a situation is not necessarily violative of Articles 14 and 16 of the Constitution. I am unable to agree that the said case is an authority for the proposition contended for by Mr. Shanti Bhushan. I agree that same situations of the nature suggested by the learned counsel may arise, but that should be an exception, and not the rule. As a rule, or as a general principle, the Court cannot sanction a principle, or a situation where seniors promoted to a higher category, draw less salary than their juniors who continue in the lower category, or who have been promoted to the higher category later. No discernible justification can be put forward in defence of such a situation. The decision of the Supreme Court relied upon by the learned counsel does not say so. The main basis of the said judgment is that the Rule aforesaid is inconsistent with, and violative of, F.R. 22(a)(ii) and is, therefore, bad. Indeed, the proposition now contended for was never argued before, or considered by, the Court in that case. Article 14, which guarantees equal treatment, cannot be a silent and helpless spectator of a glaring discrimination and injustice. If this were to be tolerated, the petitioner may well exclaim with Shylock :
'fie upon your law ! There is no force in the decrees of Venice. I stand for judgment; answer, shall I have it ?'
12. The trend of recent of decisions of the Supreme Court is also against the contention of Sri Shanthi Bhushan. In Randhir Singh v. Union of India (1982-I-LLJ-344), it was held that, construed in the light of the Preamble and Art. 39(d) of the Constitution, Articles 14 and 16 guarantee 'equal pay for equal work'. It was held that principle of these Articles can properly be applied to cases of unequal scales of pay, based on no classification, or irrational classification among persons doing identical work, but being given different scales. In this case, of course, I need not go that far, nor is it necessary for me to apply the principle of 'equal pay for equal work'. This is a case where a senior, or sometimes a person in a senior rank, is made to draw less pay than a junior or a person in a lower category, as the case may be. This, indeed, would be an a fortiori case. In D. S. Nakara v. Union of India, (1983-I-LLJ-104) the Supreme Court struck down as invalid a classification of the retired employees on the basis of an arbitrary date. It has been held that, no distinction can be made among the retired employees governed by the same Rules, on the basis of the date of retirement. In that case, it was observed that the State has to affirmatively satisfy the Court that the twin tests of reasonable classification and the rational nexus, are present to sustem a differentiation. It was held that, where all relevant considerations are the same, persons holding identical posts cannot be treated differently in the matter of their pay, merely because they belong to different departments. It was also held that, if the pensioners from a class, they cannot be classified on the basis that some retired earlier to a particular date, and some later. Incidentally, I may mention that in this case too, the argument of 'one indivisible package' was advanced by the Union of India, but rejected.
13. In W.P. No. 5216 of 1971, disposed of on 21st March 1973, Obul Reddi, J., (as he then was) issued a writ directing the Government to pay to the petitioners therein the same salary as their juniors were being paid, from the date the juniors were given a higher salary. That was a case where the Government, by accepting the One-Man Committee's recommendations, gave to the juniors a higher scale of pay while denying the seniors the same scale of pay. On account of the orders issued by the Government, a situation arose where a senior U.D.C. was getting Rs. 25/- less than his junior. The Government sought to justify the said anomaly by saying that it was taking into account the total length of service as L.D.C., as well as U.D.C. but that was held to be bad. The learned Judge held that the service in the U.D.C. category alone must be seen and that, seniority in the U.D.C. category alone is relevant. This judgment was followed by Chinnappa Reddy, J., in W.P. No 3882/1973 dated 22nd November 1974, and also by me in W.P. No. 7231/82, disposed of on 31st March 1983. In both these cases a direction was issued to fix the pay of the petitioners on per with the pay of their juniors in the respective categories, Thus, it is too late in the day to contend now that Art. 14 is helpless to remedy such injustice.
14. The matter can be looked at from another angle as well. A settlement under Section 18 of the Industrial Disputes Act, it has been held by the Supreme Court, overrides the statutory Regulations made by the Corporation, which is a party to the settlement. In L.I.C. v. D. J. Bahadur, (1981-I-LLJ-1), the question arose whether a settlement arrived at under Section 18 of the Industrial Disputes Act prevails over the Regulations made under the Life Insurance Corporation Act After considering the question as to which was, a question arises in the context of an industrial dispute between the Corporation and its workmen, qua workmen, it must be held that the Industrial Disputes Act is a special legislation, and the Life Insurance Corporation Act a general one and that accordingly the settlement arrived at under the Industrial Disputes Act prevails over the Regulations made under the L.I.C. Act. To the same effect is an earlier decision of the Supreme Court in U.P. State Electricity Board, v. H. S. Jain (1978-II-LLJ-399), where it was held that the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 prevailed over the Regulations made by the Electricity Board under Section 79(c) of the Electricity (Supply) Act, 1948, in the matter of age of superannuation. It was held that, having regard to the context, the Standing Orders must be deemed to be a special enactment as against the Regulations made under Section 79(c) of the Electricity (Supply) Act, which must be deemed to be a general law.
15. Now, here are two settlements arrived at under Section 18, of the Industrial Disputes Act. Under the first settlement, the Board undertook to remove and rectify the anomalies arising from the implementation of the said settlement. The anomalies were pointed out and, accordingly, the second settlement was arrived at, whereunder the Board agreed to review such cases, and to 'refix the salary of the senior suitably, duly relaxing the relevant rules so as to protect the pay of the senior with reference to the pay of such juniors in the same cadre'. This the Board must do now. The Board Memo. dated 11th October 1983 cannot override the second settlement. Indeed, the said Board Memo is not even a Regulation made under Section 79(c). It was not competent for the Board of issue proceedings inconsistent with the second settlement. Since the implementation of the second settlement ensures equality of treatment, this Court would be entitled to issue a writ directing the Board to implement the undertaking given by it in the two settlements.
16. It was then argued by Mr. Shanthi Bhushan that the implementation of the agreement would create several complications. He submitted that the settlements arrived at herein are settlements arrived at under sub-section (1) of Section 18, but not under sub-section (3) of Section 18. The contention is that, since it is binding only upon the parties to the settlement, and because many workers are not parties to the said settlement, it can be implemented in the case of some workers but not in the case of others. I do not find this to be a sufficient answer. The settlement is binding upon the management, i.e., the Board. It is beneficial to the workers. It would be impermissible, and even impracticable, for the Board to implement it in the case of some workers and refuse in the case of other workers. It has to extend the benefit thereof to all workers. Indeed, the prayer in W.P. No. 12998/84 is precisely for such a direction.
17. Lastly, it was contended by the learned counsel appearing for the Board that, if these writ petitions are allowed, a very heavy financial burden would fall upon the Board which it cannot bear. It is contended that, already the Board is suffering losses for the last several years and that, this would be an additional burden likely to break its back. Reference is made to Section 59(1) of the Electricity (Supply) Act, 1948, which says that the Board must so arrange and conduct its affairs and business as to leave some surplus. Counsel also submitted that this additional burden would compel the Board to raise the tariff rates for consumers. Firstly, these are not the considerations which this Court is concerned with in a case of unjustifiable discrimination; secondly, it is not shown by any clear evidence as to what additional commitment would the allowing of these writ petitions mean, and how it imposes an unbearable burden upon the Board. Mr. M. Chandrasekhara Rao, the learned Standing Counsel for the Electricity Board, stated before me, on instructions, that the additional burden resulting from the allowing of these writ petitions would be in the order of about 1-1/2 crores every year. The total budget of the Board is in the order of more than 400 crores. It cannot be said that this slight increase, which would follow upon the allowing of these writ petitions, would be such as to practically disable the functioning of the Board, or to impose upon it an unbearable burden. I find that a similar argument advanced by the Union of India in D. S. Nakara's case (supra) was rejected. At one stage, Mr. Shanthi Bhushan suggested that this additional burden may compel the Board to rescind and resile from the two settlements, and re-issue Regulations providing for lower revised scales. It is not necessary for me to express any opinion upon this suggestion. If and when the Board does that, the legality thereof would be tested; but I do not think I am called upon to express any opinion on such a contingency.
18. For the above reasons, these writ petitions are allowed, and the Board is directed to re-fix the salary of the senior in such a manner that he does not draw less than his junior, whether the junior is continuing in the lower category or has since been promoted to the same (higher) category. In the circumstances, of the case, however, I direct the parties to bear their own costs.