N.M. Kasliwal, J.
1. Both the above cases are disposed of by one single order as they arise out of an award given by the Industrial Tribunal, Rajasthan, Jaipur, dated April 22, 19(sic)0 between the same parties.
2. Certain demands were raised by Rajasthan Rajya Sahkari Samitiyan Vyavasthapak Union (hereinafter referred to as 'Vyavsthapak Union'), in respect of betterment and upliftment of the service conditions of Vyasthapaka (managers) employed in village Agricultural Co-operative Credit Societies (hereinafter referred to as the 'PACS'). After failure of conciliation proceedings the State Government referred 11 demands for aojudication to the Industrial Tribunal. Learned Industrial Tribunal gave an award on April 22, 1980 and dealt with all the 11 demands in detail. The Tribunal repelled the objection raised on behalf of the Rajasthan Co-operative Credit Institutions Cadre Authority (hereinafter referred to as the 'Cadre Authority) that the cadre authority was not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act.'). We would not refer to all the demands raised and decided by the Tribunal as the dispute before us now relates to demand No. 1 only and which has been decided by the Tribunal as point No. 3 This demand No. 1 raised by the Vyavastbapaks Union reads as under:
lgdkjh lefr;ks ds O;oLFkkidks dks jkT; ljdkj ds deZpkjh;ks ds leku dfu'B fyfid dh uohu osru Ja[kyk nh tk; A
lsUVy dks&vkijsfVo; cSd ds fyfid ds leku osru Ja[kyk ,oa egxkabZ HkRrk fn;k tk; A
Learned Tribunal, while dealing with the above demand decided as under;
Considering the above facts the pay scales of managers of PACS are determined as under:
(a) PASC doing credit business less than Rs. 2.00 lacs:
(b) for PACS doing credit business of Rs. 2.00 lacs and above:
The above pay scales will also encourage the managers of PACS to give better results of their societies.
The managers appointed in the first pay scale of each group will be eligible for promotion in the second pay scale of such group as per provisions given in the rules.
The union has claimed that the pay scales determined should be made applicable with effect from 17-5-77 from the next of the dispute raised, but the above said contention cannot be relied in this case looking to the limited resources and the business conditions of PACS and the limited resources of the cadre authority discussed above. In the circumstances it is deemed proper that the pay scales should be made applicable with effect from 1-1-1980.
The fixation of managers of PACS who have already put in 5 years service on or before 1-1-1980 shall be made in the new pay scale Rs. 280-6-292-8-340-10-410-16-455 with effect from 1-1-1980 by allowing them one extra increment and the managers with less than 5 years service shall be fixed as per their present pay at the next higher slab in the new grade. The managers who are getting less than the minimum of pay scale will be fixed at the minimum of the new scale. There after the cadre authority would promote the required number of managers for the primary credit societies having credit business Rs. 2.00 lacs or above District wise on the basis of seniority cum-merit as per rules of promotion given in the service rules, 1977 & will put them as managers of PACS having credit business Rs. 2.00 lacs or above as per their last closed accounts, and fix them in the first scale of Rs.2.00 8-340-10-410-15-500 provided for such PACS Such managers will be eligible for promotion given in second scale of their grond as per provision for promotion given in the rules.
The managers of nonvoiable PACS on attaining voibility by such PACS, will also be fixed in the above mannere in futur. The managers who work in such PACS having credit business of Rs. 2.00 lacs or above till the managers in such PACS is appointed by a selection in the above manner, may be paid the difference of the pay they are getting and on which the incumbent would be fixed, as officiating pay for this intervening period.
In this demand No. 1 the union has also claimed dearness allowance with respect of the pay scale made payable to the managers The demand may be considered reasonable to certain extent as the increased dearness is required to be neutralised by payment allowance that may be considered proper; but in the present case it is not considered expedient to grant the same as the paying capacity of the cadre authority is very limited as discussed above and therefore, it is not deemed advisable to burden it further by allowing the dearness allowance payable along with the above pay scales. However, it is observed that the cadre authorities should approach the proper authorities to devise means to raise its sources and to provide the same in the rules so that its paying capacity may increase to enable it to pay some dearness allowance to its PAC managers determinable in the manner recognised by law.
3. Aggrieved against the aforesaid award the cadre authority filed writ petition No. 1436/80 and the Vyavasthapak union filed writ petition No. 393/81. The writ petition filed by the Vyavasthapak union was beard and dismissed in limine by the learned single Judge by order, dated March 12, 1981. Aggrieved against the said order the Vyavsthapak union has filed the special appeal. During the course of hearing of the special appeal learned Counsel for both the parties submitted that the arguments in writ petition No. 1436/80 were idnentical and as such the writ petition may also be disposed of along with the special appeal. It was also submitted by the learned Counsel that in the writ petition as well as in the special appeal, the same award given by the Industrial Tribunal, dated April 22, 1980 was under challenge and in this view of the matter it was directed that the writ petition be connected with special appeal No. 169/81.
4. We would first deal with the writ petition No. 14(sic)6/80 filed by the cadre authority challenging the award, dated April 22, 1980 passed by the Industrial Tribunal. The only contention raised by Mr. Pathak, learned Counsel for the cadre authority, was that the cadre authority was not an industry within the meaning of Section 2(j) of the Act and as such no industrial dispute could have been raised and the award given by the Industrial Tribunal was itself without jurisdiction. In this regard it was submitted by Mr. Pathak that the PACS, Managers, (Selection, Appointment and Service) Rules, 1977 clearly show the PACS managers are required to work in Gram Sewa Sahkari Samitis and their selection, appointment and service conditions are provided in the aforesaid rules of 1977. The cadre authority merely exercises control and authority on the managers of the PACS, the control over these PACS managers as the district level is vested in the Centre Co-operative Banks located in the District. The payment of salary and allowance to the managers of the PACS is made from the managers salary fund maintained at the level of Central Co-operative Banks in the District. The managers salary fund is created by rateable contribution from out of the margin of 2% profit gained by the Gram Sewa Sahkari Samitis by advancing loans to its members out of which 1.50% (now changed to 1% with effect from 1-7-79) is contributed towards the said funds. The Central Co-operative Banks at the district level also contributed a part of its profits on loaning towards this fund. The Apex Bank also contributed a part of its profits on loan, towards this fund. The cadre authority is only a controlling, transferring and disciplinary authority of managers of the PACS The cadre authority does no business whatsoever and is not a profit earning institution. It provides no service to anybody. The managers of the PACS work in the societies allotted to them and are paid from out of the funds created from contributions in the manner indicated above. The cadre authority has no capital of its own saving which is raised by rateable contribution from the bodies mentioned above. It is thus submitted that the learned Industrial Tribunal committed a serious error in holding that the cadre authority was an industry.
5. We see no force in the above contention. Their Lordships of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. : (1978)ILLJ349SC have authoritatively laid down as under in respect of the Co-operative Society:
Co-operative societies ordinarily cannot, we feel, fall outside Section 2(j). After all, the society, a legal person, is the employer. The members and/or others are employees and the activity partakes of the nature of trade. Merely because Co-operative enterprises deserve State encouragement the definition cannot be distorted. Even if the society is worked by the members only, the entity (save there they are few and self-serving) is an industry because the member-workers are paid wages and there can be disputes about rates and different scales of wages among the categories i. e. workers and workers or between workers and employer. These societies-credit societies, marketing co-operative, producer's or consumer's societies or apex societies are industries.
In the above case a number of earlier decisions of the Supreme Court have been over-ruled and a revolutionary interpretation has been given to the definition of the word 'industry' as given in Section 2(j) of the Act.
6. It is admitted fact that the cadre authority arranges for the recruitment of the managers of the PACS and thereafter the appointment is issued by the Chief Manager of the Central Co-operative Bank in the name of cadre authority. The premium of fidility guarantee bonds furnished by the managers is paid by the cadre authority. The managers appointed are made permanent by the cadre authority and their transfers out-side the District are also made by the cadre authority. The ultimate control for disciplinary action against the managers is also vested in the cadre authority. The wages of managers of PACS are paid from the fund created in favour of cadre authority in the name of Vyavasthapak Wetan purse. All the above activities are done by the cadre authority in a systematic manner organised by the co-operation between the cadre authority (as employer) and its managers (as employees) for supply of material services of the managers to its members. The above activity cannot be taken away from the purview of economic activity merely on the ground that it had to be discharged under the provisions of certain rules framed in this regard. Such an activity is also to be construed as an activity analogus to the business as the cadre authority is provided funds by its members. A perusal of the entire provisions of the rules of 1977 leave no manner of doubt that the manner in which the cadre authority functions and the activities done by it is covered within the meaning of industry as held by their Lordships of be Supreme Court in Bangalore Water Supply and Sewerage Board v. A Rajapaa and Ors (supra).
7. Mr. Pathak also submitted that the dispute raised in the present case ought to have been referred to arbitration as provided under Section 75 of the Rajasthan Co-operative Societies Act. It is submitted that in view of the above provision, no dispute could have been referred for adjudication to the Industrial Tribunal. We see no force in this contention. Section 75 deals with dispute touching the constitution, management or the business of a co-operative society. The dispute raised in the present case does not come within the purview of the constitution, management or the business of a co-operative society and the above section cannot be a bar for raising any industrial dispute. In this view of the matter we find no force in any of the contentions raised on behalf of the cadre authority in the writ petition filed by it.
8. We shall now deal with the special appeal filed by the Vyavasthapak union, against the order of the learned Single Judge. It was contended by Mr. Dalip Singh, learned Counsel for the Vyavasthapak Union, that the learned Tribunal itself, while dealing with demand No. I had observed as under:
The managers employed by the cadre authority are near about 5100 and they have been employed throughout Rajasthan. One primary agricultural co-operative soeiety covers an area of 2-3-gram panchayats which extends nearly in the area of 5 kilometers. There managers have to discharge the duties as a manager of the PACS as a Secretary of the Committee of the PACS, as a cashier, as loan recovery clerk, and had to discharge other allied functions. Thus these duties cannot be termed less responsible than the duties of a Lower Division Clerk of the State Government or a clerk of any Central Co-operative Bank with the exception that the area of operation of their duties is small in comparison to the other employees. In such areas the gram sewaks and patwaries are employed by the State Government and they are also paid equivalent to the Lower Division Clerk by the State Government. Id that case the above said contention raised by the opposite party cannot be given any substantial weight. The contention of the opposite party that the managers have to work 2 to 4 months in a year also cannot be given any weight in seeing the justification of the existing pay scale payable to such managers if it is considered otherwise low. In many parts of Rajasthan the agriculturists take 2 crops from their land as such it cannot be relied that the managers of the PACS have to work 2 to 4 months in a year throughout Rajasthan. Besides, they have to remain on their duties even during the slack season and they are not permitted to run their other business or profession, under the rules. In that case the above said contention cannot be given any weight.
It was further contended by Mr. Dalip Singh that while dealing with the question of status to be given to the managers, learned Tribunal had arrived to the following finding of fact:
Thus it is apparent that at one time the pay scale of managers of village cooperative societies was equivalent to the pay scale of Lower Division Clerk of the State Government and thus they were considered parallel in status with the Lower Division Clerks of the State Government.
It is thus submitted that after recording the above finding, the learned Tribunal committed an error apparent on the face of the record in taking the view that the mangers could not be taken at par with the clerks of the Central Cooperative Banks and LDCs of the State Government. It is submitted that after recording a finding of fact that the duties of the managers could not be termed less responsible than the duties of a Lower Division Clerk of the State Government or a clerk of any Central Cooperative Bank and also that the pay scales of the managers at one time were equivalent to the pay scale of Lower-Division Clerks and were considered parallel in status with the Lower Division Clerk, there was no justification in not granting the pay scale equivalent to the Lower Division Clerks of the State Government to them, I, e., Vyavasthapaks (managers). It was also submitted by Mr. Daleep Singh that the learned Tribunal wrongly made a distinction in PACS doing credit business less than Rs. 2 lacs and above Rs.(sic) lacs and in determining different pay scales on that basis. It is submitted that no such distinction has been laid down even in the rules of 1977. Under the above rules only two pay scales have been provided:
Thus it is argued that the learned Tribunal has wrongly made two groups of managers on the basis of viable and non viabe PACS having credit business below Rs. 2 lacs and above Rs.2 lacs. It is also argued that it lies in the sweet will of the Reserve Bank to grant loans to particular PACS and make its credit business below Rs. 2 lacs or above it. So far as the duties of the managers are concerned it makes no effect whether he is working in PACS having credit business below Rs. 2 lacs or above it.
9. It was also submited by the learned Counsel for the Vyavasthapak Union that the principle 'equal pay for the equal work' has already been recognised by their Lordships of the Supreme Court in several decisions and the managers ought to have been given a pay scale equal to the Lower Division Clerks in the State Government or clerks in the Cooperative Banks.
10. On the other hand it was submitted by Mr. Pathak, learned Counsel for the cadre authority, that the question of equating of posts of managers in PACS, with posts in other departments of the State Government and to compare the nature of duties and responsibilities attached to each category of such post, lay within the competence and jurisdiction of the Industrial Tribunal and this Court in the exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India cannot sit as a court of appeal over the opinion of the Industrial Tribunal. It is further submitted that the nature of duties and responsibilities of a lower division clerk in the State Government are entirely different from the nature of functions and duties assigned to the managers of PACS and the two are neither identical nor common in nature The principle of 'equal pay for equal work' is thus not applicable in the facts and circumstaces of this case.
11. Mr. Dalip Singh in support of his contention has placed reliance on Workmen of New Eqerton Woollen Mills v. New Eqerton Woollen Mills and Ors. 1959 (2) L.L.J. 782, Messrs. Unichem Laboratories Ltd. v. The Workmen: : (1972)ILLJ576SC , S.S. Chandrashekar Math and Ors. v. State of Karnataka and Anr.: 1979 LIC 77 ahd Randhir Singh v. Union of India and Ors. 1982 (1) SLR 756.
12. It may be mentioned at the outset that the nature, functions, duties and responsibilities of a lower division clerk in the State Government or a clerk in the Cooperative Bank are entirely different from such duties and responsibilities of managers of PACS The two posts are neither identical nor similar in nature. Their employers are different and they are governed by different set of service rules and conditions of service, the principle of 'equel pay for equal work' as such cannot be applied in the present case in order to give the same pay scale to managers of the PACS as given to the lower division clerk or clerks in the Coopertive Banks. The learned Tribunal of course had recorded a finding that the duties of the managers of the PACS were not less responsible than the duties of a lower Division clerk of the State Government or a clerk of any Central Cooperative Bank and at one time the managers were considered parallel in status with lower division clerk of the State Government, but that does not mean that the posts of managers of PACS were identical or common with the posts of lower division clerks or clerks of the Central Cooperative Bank for the purpose of granting equal pay to the managers of the PACS. In our view the principle of 'equal pay for equal work', cannot be extended to two totally different kinds of posts which are governed by different set of service rules and where their employers may be different. It is a matter of common knowledge that in many services persons have to render more arduous than the persons employed in other service but still their pay scales may be different and this cannot furnish a ground for claiming equal pay scale on the principle 'equal pay for equal work'. That is a matter for the concerned State Government or other employer to ameliorate the pay scales of such employees who render more arduous duties and have greater responsibility to discharged. It is not within the domain of this court to lay down a new pay scale, unless it is proved that the employees in the other concern or Government department are getting higher pay scales on identical or common posts. The learned Industrial Tribunal itself had subsequently found as under:
Considering the above facts and considering the duties they have to discharge and their area of operation they cannot be taken at per in all respect with the Clerks of the Central Coperative Banks and Lower Division Clerks of the State Government, but in view of above they are to be considered above the class IV employees and somewhat equivalent to the Lower Division, Clerks Of the State Government, for considering their status for the purpose of determination of pay scales.
Thus we are clearly of the opinion that there is no identity or similarity in the nature of work, duties and responsibilities in between the posts of managers of PACS on the one hand and lower division clerks of the State Government and clerks of the Central Cooperative Banks on the other hand.
13. In Workmen of New Egerton Woollen Mills v. New Egerton Woollen Mills and Ors.:(supra) their Lordships of the Supreme Court observed as under:
In a number of decisions of the Supreme Court and of the Industrial Tribunal, it has been laid down that two principal factors which must weight while fixing or revising wage-scales and: grades are: How the wages prevailing in the establishment in question compare with those given to the workmen of similar grade and scale by similar establishment in the same industry or in their absence in similar establishments in other industries in the region and what wage-scales, the establishment in question can pay without any undue strain on its financial resources. In considering the first question, the tribunal has first to ascertain whether there are comparable concerns in the same industry in the region. In doing so it has to take into account the extent of business, the capital invested, the profits, the nature of business, the standing, the strength of labour force, the service, if any, the dividends paid, the future prospects of the business of concerns put forward before it as comparable and other relevant facts. Obviously there can be no comparison between a small struggling unit and a large flourishing concern of long standing. Where there are no such comparable concerns in the same industry in the region, the tribunal can look into concerns in other industry in the region for comparison but in that case such concerns should be as similar as possible and not dis- proportionately large or absolutely dis-similar.
In the above case the financial capacity of the company to bear the burden of revision of wage scales was not disputed nor the justification or the necessity for the revision of wage scales. Special leave filed by the workmen was allowed and it was held that since the tribunal accepted that Orient Carpet . v. The Workmen (supra) their Lordships of the Supreme Court held that once the test for comparing different units is satisfied, no distinction could be made on the ground that some workman were in the employ of purely local units while others were employed in foreign companies or companies having foreign colloboration'. The above observations show that before fixing or revising wage scales and grades it must be proved that the test for comparing different units is satisfied. Thereafter no distinction can be made merely on the ground that some workmen were employed in purely local units while others were employed in foreign companies or companies having foreign collaboration. The above case thus renders no assistance to the appellant. In S.S. Chandrasheker Math and Ors. v. State of Karnataka and Anr. 1979 Lab. IC 77 a learned Single Judge of the Karnataka High Court held that 'where the State Government itself had treated two categories of posts in a department or service of the State as equivalent, then the court can examine if higher pay scale to one category of civil servant is allowed and similar treatment is denied to other civil servant without, any basis.' In fact as stated in the above case the Government itself had accepted that in the department of mines and geology the work assigned to both Asstt. Geologist and Asstt. Geophysicists were similar. The duties and responsibilities for both the posts were identical. The learned Judge had also found it established that the two posts were equal and inter changable Reference was made to a letter of the Director of Mines a d Geology in which it has been pointed out that the two categories of posts were similar in all respects, including the minimum qualification as also duties and responsibilities. The above case is thus of no assistance to the appellant in the facts and circumstances of the case before us.
14. In Randhir Singh v. Union of India and Ors.: (supra) their Lordships of the Supreme Court considered the case of Driver Constable in the Delhi Police Force under the Delhi Administration. It was found as matter of fact that the petitioner performed the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. The duties of the petitioner were found more arduous and having greater responsibility. In these circumstances it was held that the petitioner cannot be given lesser pay scale than other drivers. It was observed in the above case 'We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.' The above observations clearly go to show that in order to apply the principle of 'equal pay for equal work', it must be held established that the two persons must be holding identical posts performing identical powers, duties and responsibilities.
15. We would now consider the other submissions made by the learned Counsel for the appellant. The learned Tribunal while dealing with the question of financial resources and burden on the cadre authority observed as under:
As per figures of profits shown by the PACS and the loan distributed by the PACS narratted by Shri D.K. Merishi in his affidavit the above said contention appears untenable. He has disclosed in his affidavit that in 1976-78 3324 societies earned a profit of Rs. 132.07 lacs 1238 societies ran into loss of Rs. 78.68 lacs and 585 societies had neither earned any profit more incurred any loss. It shows that there was a surplus of Rs. 54.00 lacs in the working of the PACS. The loan distributed as the short and mid-term loan by the PACS have also increased gradually as is apparent from the statement of Shri Merishi. In that case it cannot be relied that the cadre authority would not be able to bear the additional financial burden necessitated on account of revision of present pay scale. The cadre authority, did not prefer to produce its income and expenditure account from which it could have been relied whether it is in position to bear the additional burden or not. In that case from the trend of increase in distribution of mid-term and short-term loans by the PACS and decrease in number of nonvoiable PACS, it can be relied that the cadre authority is in position to bear the additional burden.
The learned Tribunal after considering the duties and responsibilities of the managers of PACS and the pay scales of class IV employees, LDC and clerks of Central Cooperative Bank considered it proper the managers of PACS to be above the class IV employees and some What equivalent to the LDC of the State Government, for considering their status for the purpose of determination of pay scales. In the opinion of the Tribunal the managers were at present being paid Rs. 250/- in the pay scale of Rs. 250-8-330. It was near about the pay scale of class IV employees of the State Government though it was more than the minimum wages (Rs. 182.00 for a month of 26 days) prescribed for the unskilled labour by the State Government. It was further found that the pay scale of Assistant Loan Inspector which was a promotion post of managers of PACS was Rs. 120-5-160-8-200-10-240 which was revised in the pay scale of Rs. 370-10-410-15-530-20-590. The learned Tribunal thus held that it would be just and proper that the pay scale of the managers of PACS shauld be determined some-where in between the pay scale of Assistant Loan Inspectors Rs. 370-590 and of class IV employees pay scale Rs.240-290.The Tribunal thus held that in the service rules of managers of PACS 1977 two pay scales have been prescribed for such managers and their appointments were to be made in first pay scale and there after they were made eligible for promotion in the second pay scale as per procedure given in the rules. In the circumstances in the opinion of the learned Tribunal it was deemed desirable that two pay scales should be determined each for viable PACS, i.e., the PACS doing credit business of Rs. 2 lacs and above and also for nonviable PACS doing any credit business less than Rs. 2 lacs, so that the existing rules may not be required to be modified. Considering the above factors the learned Tribunal fixed the pay scales of managers of PACS as under:
(a) PACS doing credit business less than Rs. 2 lacs:
(b) for PACS doing credit business of Rs. 2 lacs and above:
It was further held that the managers appointed in the first pay scale of each group will be eligible for promotion in the second pay scale for such group as per provisions given in the rules. It was further held that the fixation of the managers of PACS, if already put in 5 years service on or before 1-1-1980, shall be made in the new pay scale of Rs. 280-455 with effect from 1-1-1980 by allowing them one extra increment and the managers with less than 5 yrs. service shall be fixed as per their present pay at the next higher slab in the new grade. The managers who were getting less than the minimum of pay scale will be fixed at the minimum of the new scale. Thereafter the cadre authority would promote the required number of managers for the primary credit societies having credit business Rs. 2 lacs or above, district-wise on the basis of seniority-cum-merit as per rules of promotion given in the service rules, 1977, and will put them as managers of PACS having credit business Rs. 2 lacs and above as per their last closed accounts and fix them in the first pay scale of Rs. 300-500 provided for such PACS, such managers will be eligible for promotion in second pay scale of their grade as per provisions for promotion given in the rules.
16. We have given our consideration to the above relief granted to the managers and the relevant provisions of the rules of 1977. In the rules of 1977 there is no distinction of viable or non viable PACS on the basis of credit business of Rs 2 lacs or above. Under Rule 3 only two pay scales have been provided in the following manner:
It has been further provided that all the new appointments shall be made in the first pay scale and the second pay scale would be given by promotion. For making one entitled to the second pay scale, a minimum experience of five years on the post of managers was incumbent. The cadre authority shall lay down norms on the basis of which promotion shall be made by a Selection Committee. Ten times the number of vacant posts shall be considered on the basis of seniorty. In our view the distinction made by the learned Tribunal in the matter of pay scales of managers of PACS of viable and nonviable societies is contarary to the provisions of the rules. No distinction can be made in the nature, duties & functions of a manager of viable non-viable society. The question of having credit business of Rs. 2 lacs or above does not lie in the hand of the manager and it depends on the amount of loan given to a particular society for disbursement to the agriculturist. Under the rules there is one common mode of selecting and appointing the manager in the society. Under Rule 4 all the managers have to undergo a similar kind of training irrespective of the society having credit business of Rs. 2 lacs or more. There are no rules for posting a manager in a particular society & it would certainly create an anomaly and discrimination in case two different pay scales are provided as suggested by the learned Tribunal on the basis of viable and non-viable society. It would be left in the sole discretion of the cadre authority to appoint a particular manager in a viable or nonviable society, though selected by the same process and having secured the same training. In case a manager is appointed in a non-viable society, he would be put to a loss as he would be fixed in a lower scale and will be able to get the higher pay scale after a lapse of several years by way of promotion. Thus, in our view there was no basis of justification for giving two different pay scales in two different grades.
17. Thus, taking in view the entire facts and circumstances of the case the pay scale of managers of PACS are to be determined as under:
The above two scales of pay shall be in accordance with the provisions of Rule 3 of the Rules of 1977 in so far as fixture two pay scales only. The above pay scales shall be made applicable with effect from 1-1-1980. Though Mr. Dalip Singh, learned Counsel for the appellant, submitted that the pay scales should be made applicable with effect from 17-5-1977 when the dispute was raised, but we do not want to interfere in this regard in the discretion exercised by the learned Tribunal which have made the pay scales applicable with effect from 1-1-1980. The fixation of managers of PACS who have already put in five years service on or before 1-1-1980 shall be made in the pay scale of Rs. 355-570 with effect from 1-1-1980 by allowing them one extra increement and the managers with less than five years service shall be fixed as per their present pay at the next higher slab in the grade of Rs. 300-500. The managers who are getting less than the min mum of pay scale will be fixed at the minimum of the scale of Rs. 300-500. It is however, made clear that before fixing the managers who have already put in five years service on or before 1-1-1980 in the pay scale of Rs. 350-570, they would be required to be selected by the Selection Committee as provided Under Section 3 of the Rules of 1977. The cadre authority would be free to determine the number of posts having fallen vacant on 1-1-1980 for the purpose of promotion in the higher pay scale in this regard. Such manager of PACS who have already put in five years service on or before 1-1-1980 but not having been selected by the Selection Committee under Rule 3 of the Rules of 1977, shall be fixed in the pay scale of Rs. 300-500.
18. The special appeal is, therefore, allowed in part in the manner indicated above. The parties shall bear their own costs through-out. The writ petition No. 1436/1980 is dismissed with no order as to costs.