M.P. Thakkar, J.
1. It has been urged in all seriousness, amazing as it may sound, that hostile and obnoxious discrimination can be practised by the State with impunity not only without qualms of conscience but even without violating the constitutional mandate embodied in Articles 14 and 16 of the Constitution of India if it is blessed by an employees' union which is supposed to safeguard the interest of 'all' the employees and not to promote the interest of 'some' at the cost of others. The argument is that Constitutional safeguards can be waived by the employees if the Union representing them nods its head to the arrangement. In other words, the problem which had surfaced in this petition under Article 226 of the Constitution of India instituted by 125 employees of the 0. N.G.C. employed at Central Workshop, Baroda, is whether the right to equality enshrined in Articles 14 and 16 of the Constitution of India can be annulled from time to time and can be crazed provided the consent or concurrence of the Union to which the employees belong is forthcoming. 2. In Central Workshop of the O.N.G.C. at Baroda, recruitment can be made by two modes, namely, (1) direct recruitment and (2) recruitment by transfer from other department of 0. N.G.C. Till September 25, 1976 all the employees employed at Central Workshop, Baroda, comprising of employees recruited from both the sources used to be paid allowance styled as 'workshop allowance.' The said allowance was paid to all the employees irrespective of their source of recruitment that is to say, regardless of whether they were direct recruits (first source) or transferee recruits (second source). On September 25,1976 a settlement was arrived at between the Union of Employees and ONGC. Under this settlement it was decided as under:
1. That payment of workshop allowance should be abolished.
2. That in respect of the employees who were already in employment as on April 1, 1976 the workshop allowance should be merged with the basic pay and:
3. That in respect of those who were recruited after April 1, 1975 workshop allowance should be treaded at personal pay and instead of merging it with the basic pay it should be discontinued.
It is Clause (3) of the aforesaid agreement which has given birth to the problem, 125 workmen of the Central Workshop, Baroda, who were recruited from the aforesaid two sources between April 1, 1975 and September 25, 1976 belonging to the category falling within the aforesaid controversial clause, Clause 3, have instituted the present petition under Article 226 of the Constitution of India and have contended that they are entitled to similar treatment (as meted out by Clause 2 of the agreement providing for merger of the workshop allowance with basic pay which was obviously more beneficial). They have invoked the protection of Articles 14 and 16 of the Constitution of India in order to claim similar treatment as is accorded to their counter-parts who were recruited prior 10 April 1, 1975 so as to gain the benefit of amalgamation of workshop allowance with the basic pay.
3. During the pendency of the petition, the ONGC has made amends to 75 out of 125 petitioners who were recruited by transfer from other departments of ONGC subsequent to April 1, 1975. In so far as they are concerned, ONGC gas granted the request and agreed to accord them similar treatment as was accorded to Pre-April 1, 1975 recruits by merging the workshop allowance with their basic pay. So far as they are concerned, their grievance does not survive any more in view of this subsequent development. In so far as remaining 57 employees who were appointed between April 1, 1975 and September 25, 1976 by direct recruitment are concerned, me ONGC does not agree to the request for merging workshop allowance paid to them with the basic pay. The only argument advanced is that the settlement arrived at between the Union and the management in terms provides that in so far as they are concerned, the workshop allowance shall be treated as personal pay and that it shall be absorbed in further increments. The question is whether ONGC can deny to these employees similar treatment as is accorded to rest of the employees.
4. In paragraph 3 of the petitioner it has been in terms stated that workshop allowance was being paid to the petitioners between April 1, 1975 and September 25, 1976 on which date it was abolished. This fact has not been controverted in the affidavit-in-reply. Learned Counsel for ONGC does not contend that the workshop allowance was not actually paid to them during this period. It is an undisputed position that workshop allowance was paid both to direct recruits as well to those who were brought by transfer from other departments during this period (April 1, 1975 and September 25, 1976). If it was actually paid to them prior to this period, it is difficult to comprehend how in the case of the transferee the workshop allowance can be merged in the pay scale without according similar treatment to the direct recruits. There is no rational ground for this classification depending on recruitment prior to April 1, 1975 or recruitment subsequent to April 1, 1975. So also there is no rational basic for classification depending on whether appointment was made by direct recruitment or by transfer. Even to those who were directly recruited prior to April 1, 1973 the benefit of merging of workshop allowance with the basic pay has been extended. What is the significance of the red letter day of April 1, 1975? No rational basis for making a classification depending on the factor as to whether the recruitment was made prior to April 1, 1975 or subsequent to April 1, 1975 has been disclosed in the Affidavit-in-reply nor is Counsel able to show any basis in the course of his arguments. So also no rational basis for treating direct recruits between April 1, 1975 and September 25, 1976 on the one hand and transferees recruited during the same period differently is disclosed in Affidavit-in-reply or in arguments. The classification made for the purpose of extending the benefit of one category and denying the same to another is altogether arbitrary and irrational.
5. It is evident that the hostile classification depending on whether one was a pre-April 1, 1975 recruit or a post April 1, 1975 recruit is irrational and arbitrary and it provides no valid basis for according a discriminatory treatment in the matter of merger of workshop allowance with their pay scales. The question as to whether recruitment was made prior to April 1, 1975 or subsequent to April 1, 1975 has obviously no relevance because there is no magical charm or virtue in being recruited on or after the said dividing line. The burden therefore, shifts to the shoulders of ONGC to show that the dividing line has been devised on some rational principle or understandable basis and not as per whim or caprice ONGC is unable to do so. The only alibi offered by ONGC is that the Union of employees has agreed to this. This answer does not answer the test of logos, ethos or any principle rooted in common sense.
6. Three points emerge on elementary principles namely; the consent of the Union:
(1) cannot render the constitutional provisions nugatory.
(2) cannot wipe out equality guarantee enshrined in the Constitution of India:
(3) cannot over ride the mandate of the Constitution to accord equal treatment.
It would amount to amending the Constitution by consent of the Union. Even the Court can interpret the Constitution but cannot 'AMEND' the same it being the source of the power of the Court itself. The consent of the Union is, therefore, no answer muchless a good answer in justification of infringement of Articles 14 and 16 of the Constitution. No immunity can be earned by entering into compromise with the Union. The petitioners are entitled to claim the protection of Articles 14 and 16 of the Constitution of India irrespective of what the Union may have to agreed to. The ONGC must, therefore, show (which it has not even attempted to do for the good reason that it cannot do the impossible) that the Articles 14 and 16 of the Constitution of India are not violated and that there is some rational basis for according unequal treatment to the direct recruits appointed between April 1, 1975 and September 25, 1976. ONGC is unable to do so.
7. The petition must, therefore, succeed. The respondents are directed to accord to the petitioners (who were appointed between April 1, 1975 and September 25, 1976 by direct recruitment) same treatment as is accorded to the 'pre-April 1, 1975 direct recruits' 'and to the 'post April 1, 1975 appointees' by transfer' in the matter of merging the warkshop allowance with the basic pay. Relief as claimed in paragraph 17 (a) of the prayer clause of the petition is, therefore, granted. Rule is made absolute to this extent with no order as to costs.