Civil Appeal No 1196 of 1986 with 830 of 1991
From the Judgment and Order dated 1941985 of the Calcutta 519 High Court in FMATNos
153 of 1980 and 326 of 1983
NS Hegde Additional Solicitor General Tapas Ray DK Sinha JRDas and DN Mukherjee for the Appellants
PP Rao AK Ganguli Ajit Chakraborty A Mariarputham
Mridula Ray A D Sikri and BB Tawakley for the Respondents
The Judgment of the Court was delivered by FATHIMA BEEVI J
The West Bengal Services Revision of Pay and allowance Rules 1970 hereinafter referred to as 1970 Rules issued in exercise of the power conferred by the proviso to Article 309 of the Constitution of India vide Notification No 5212F dated 30th December 1970 on the basis of the Pay Commission Report specified the revised scales of pay of the government employees in various departments with effect from 1st April 1970
Schedule I of the 1970 Rules relates to services generally
The Government of West Bengal issued Notification No 10303F dated 19th November 1974 amending the 1970 Rules
The Notification material for the purpose of these cases is set out below NOTIFICATION No 10303F Dated the 19th November 1974
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India the Governor is pleased to direct that the following amendment shall be made in the West Bengal Services Revision of Pay and Allowance Rules 1970 Published with Finance Department Notification No 5212F dated the 30th December
1970 as amended from time to time namely AMENDMENTS In Schedule I Part B to the said rules the following amendments shall be made 1
In the cadre of Assistant Engineers under different Departments the Intermediate Selection Grade shall be at 15 per cent of the Cadre in the scale as shown in Column 3 of the Schedule
520 II
In departmentsoffices having servicesposts as shown in Column i in the scale as shown in Column 2 of the Schedule there shall be no Intermediate or New Selection Grade as the case may be at 10 per cent of the servicesposts except in the cadre of Assistant Engineer in the scale as shown in Column 3 of the Schedule
From 1st August 1974 the NewIntermediate Selection Grade shall be raised to 15 per cent from 10 per cent
i Sub Assistant Engineers having Engineering Degree shall have an initial start in the existing scale of Rs300 600 at the stage of Rs360 per month
They will also get the benefit of age relaxation for direct recruitment either through the Public Service Commission or for ad hoc appointments
ii All Test Relief Overseers and other diploma holder Engineers will henceforth be termed as Sub Assistant Engineers
iii Sub Assistant Engineers with LEE who have supervisor s licence from the Commerce and Industries Department will get a qualification pay of Rs50 per month
iv Gazetted status is hereby conferred on the members of the Subordinate Engineering Service and all Sub Assistant Engineers
The existing scale namely Rs375 10 415 15 610 20 650 prescribed for the members of the non gazetted Health Service having MBBS or MMF qualifications shall be changed to Rs 375 10 415 15 610 20 650 EB after 8th and 18th stages higher initial start at Rs450
All Licentiate Medical Officers in the West Bengal Health Service Non Gazetted who have completed 10 years of service shall be eligible for appointment in the West Bengal Health Service Gazetted within the existing cadre strength of the basic grade provided they are found suitable for the basic grade in consultation with the Public Service Commission
521 VII
The New or Intermediate Selection Grades sanctioned above shall be admissible after 10 years of service in the grade next below
Unless otherwise stated above and in the Schedule these amendments shall be deemed to have come into effect from 1st day of March 1974
The Notifications bearing No 2194F 2195F and 2197 dated the 11th March 1974 stand cancelled
No prior consultations with the Public Service Commission shall be necessary for making appointments to NewIntermediate Selection Grades sanctioned in this Notification The said Notification contained a Schedule
The relevant items dealing with Engineering is provided as follows SCHEDULE _______________________________________________________________ Service Existing scale NewIntermediate Posts Rs Selection Grade Rs ________________________________________________________________ 1
Engineering ServicesPosts
i Assistant 475 30 685 35 1000 825 50 875 60 1415
Engineer 50 1150 with selec tion grade for 5 per cent of the cadre on 1150 50 1350
ii Executive 825 50 875 1535 60 1775
Engineer 60 1475
iii Sub Assistant 300 10 430 15 600 560 20 700 25 Engineer with higher initial 825a
start at Rs 330 
____________________________________________________________ The respondents in Civil Appeal No 1196 of 1986 and the respondents in the other Civil Appeal arising out of SLP Civil No 5298 of 1987 are diploma holder engineers employed in various 522 departments of the Government of West Bengal in the post of Operator cum MechanicsElectricians etc
in the scale of pay of Rs230 425
These respondents filed two writ petitions bearing No CR Nos 6053 W of 1978 and CR No6593W of 1978 before the High Court of Calcutta claiming that by virtue of sub para ii of Para IV of the Notification No 10303F dated 19th November 1974 the writ petitioners who are diploma holders in engineering are to be termed as Sub Assistant Engineers and given the benefit of that post and the scale of pay of Rs300 600
They contended inter alia that the benefit of the aforesaid Notification was given to similarly situated persons in the other deparptments of the Government of West Bengal and the writ petitioners employed in the Agriculture Department had been subjected to discriminatory treatment
The State Government contended before the High Court that sub para ii of Para IV of the said Notification applies only to the Overseers Estimators and Sub Overseers already holding the scale of pay of Rs300 600 and not to Operator cum MechanicsElectricians etclike the writ petitioners whose scale of pay is Rs230 425
According to the State the said Notification was merely one changing the designation of various techniques and engineers having scale of pay of Rs300 600 but having different designations and was meant to give uniformity of designation to all the aforesaid officials in the same scale of pay of Rs300 600
It was also the contention of the State that they being Operator cum Mechanics whose recruitment qualifications is much less than the the diploma in engineerings the writ petitioners cannot or are not entitled to be redesignated as Sub Assistant Engineers
These contentions were repelled by the learned single Judge who by judgment dated 19th September 1979 allowed the writ petitions
In the Judgment Sabyasachi Mukharji J as he then was held as under Now it is important to emphasise that the said Notifications covered other diploma holder Engineers 
Now if those who were engineers or those for whose recruitments qualification of being engineers was essential there was no necessity to indicate that they should be henceforth be termed as Sub Assistant Engineers
They are Engineers Sub Assistant or otherwise before they were called by the deeming provision of the amended Notifications referred to hereinbefore
 In construing sub para ii of Para IV of the said Notification the learned Judge said thus 523 The aforesaid clause in the Notifications can only mean in my opinion that even though the persons who come within the purview of this amended clause of the Notification will for the limited purpose of their pay allowances and other financial emoluments be termed from the date of coming into operation or from the mentioned in the Notification of 1974 that is to say from 1st of March 1974 as Sub Assistant Engineers though they are in fact not engineers
That in my opinion is clear from the language used
 The learned single Judge noticed that the history preceding the Notification supported the clear language used and persons holding different positions became by virtue of the Notification entitled to be termed as Sub Assistant Engineers irrespective and independent of whether by fortuitous circumstances some of the incumbents who got the benefits of the said Notification are also qualified engineers
Accordingly it was held that the writ petitioners come within the purview of the Notification for purpose of the the pay scale and the rule was made absolute
The State Government carried the matter in appeal
The Division Bench of the High Court vide judgment and order dated 1941985 however affirmed the judgment while holding that sub para ii of Para IV of the Notification dated 19111974 cannot be construed to include the Operator cum MechanicsElectricians who are holders of diploma in engineering and drawing the scale of pay of Rs 230 425
The appeal was dismissed with the observation that the writ petitioners should have been admitted to the benefit of the scale of pay of Rs300 600 with higher initial start long before others holding the same position as the writ petitioners have been granted the benefits and that great injustice had been done to the writ petitioners by keeping them in the panel since 1974 without taking any steps for their appointments to the post of Sub Assistant Engineers although others have been appointed to the said post in implementation of the impugned Notification
Being aggrieved by the appellate judgment the State has moved this Court under Article 136 of Constitution
Leave is granted in SLPC No 5298 of 1987
The main contention urged on behalf of the appellants is two fold
It is contended that the Division Bench having come to the 524 specific conclusion that the Notification in question is not applicable to the respsondents herein the writ petitions ought to have been dismissed
The further contention is that the appointment of 17 other persons without considering the case of the respondents even if irregular cannot be the basis for making the Notification applicable to the respondents
Before considering these propositions put forward by Mr Hegde Addl
Solicitor General appearing for the appellants we shall dispose of the preliminary objection raised by Mr PP Rao counsel for the respondents
It was pointed out that no appeal has been preferred by the State of West Bengal against the judgment dated 2561982 in the case of Ranjit Kumar Ghosh  Ors
vs The State of West Bengal  Ors being CR No 923 W of 1980 granting similar relief and that the rule of law has become final so far as that matter is concerned
Relying on the decision of this Court in Chief Secretary to Govt
AP vs Cornelius   it was argued that the State cannot agitate the case of only few others
It is not disputed that the judgment against which no appeal has been preferred is only based on the judgment in the main case which is now pending before us for consideration
The Court in State of Punjab vs Joginder Singh 1963 Supp2 SCR 169 where a similar objection was raised overruled the same observing at page 177 thus In our opinion the true position arising if the present appeal by the State Government should succeed would be that the finality of the orders passed in the other three writ petitions by the Punjab High Court would not be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed
That however would not help the present respondent who would be bound by our judgment in this appeal and besides so far as the general law is concerned as applicable to everyone other than the three writ petitioners who would be entitled to the benefit of decisions in their favours having attained finality the law will be as laid down by this Court
We therefore overrule the preliminary objection
 It appears that this pronouncement was not noticed in Cornelius case supra where the facts were also not identical
We have therefore no hesitation in overruling the preliminary objection
525 The appellants in our opinion cannot however succeed on the merits
The basis of the respondents  claim is that they are diploma holder engineers who are to be designated as Sub Assistant Engineers for the purpose of the revised pay scale by virtue of the Notification dated 19th November 1974
The learned single Judge had construed the expression other diploma holder engineers  in clause ii of Para IV of the said Notification as covering persons like the respondents who are holders of diploma in engineering
The Division Bench in holding a contrary view overlooked the fact that the posts of Overseers Estimators and Sub Overseers were already covered under the category of Sub Assistant Engineers even under the unamended rules and were in the pay scale of Rs300 600 whereas the respondents holding the post of Operator cum MechanicsElectricians were diploma holder engineers in the scale of pay of Rs230 425
As noticed by the learned single Judge the reasons for amending the 1970 Rules by the Notifications dated 1131974 and 19111974 was the decision of the Government to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature
This factual background was not considered by the Division Bench while considering the scope of the amended provisions
The appellants admitted that in 1970 the pay scale of Overseers and Sub Overseers was revised and both Overseers and Sub Overseers were brought within the scale of Rs300 600
The Division Bench has recorded a finding to the effect that the Overseers
Estimators and Sub Overseers were already included in the categories of Sub Assistant Engineers under Schedule I Part B of the 1970 Rules even before the same was amended by the Notification
The persons brought under the category of other diploma holder engineers  can only be the persons like the Operator cum MechanicElectrician with diploma in engineering and working in various departments in the Engineering Service
It is to be noticed that the respondents have been absorbed in the posts of Operator cum Mechanics after having attended to the training sponsored under the scheme Training of Educated Unemployed Youths  in the operation of river lift deep tubewells and shallow tubewells etc
Clause iv of Part IV of the Notification which states that Gazetted status is conferred on the members of the Subordinate Engineering Services and all Sub Assistant Engineers also relates to these two categories that is the Overseers Sub Overseers and Estimators who are already members of the Subordinate Engineering Service and the other diploma holder engineers  now termed as Sub Assistant Engineers
526 It has been contended for the appellants that by construing the Notification as including Operators cum Mechanics in the lower time scale as Sub Assistant Engineers and giving them a higher scale there would be a division amongst the Operators cum Mechanics in the matter of their pay scale and such an anomly would not have been contemplated by the rule makers
There is no force in this contention
It is well settled that difference in pay of employees belonging to the same cadre post or educational qualification is constitutionally valid and permissible and is not violative of Articles 14 and 16 of the Constitution
The post of Sub Assistant Engineer is a direct recruitment post
It appears that the Division Bench assumed that the post of Sub Assistant Engineers were ultimately a promotional post for the Operators cum Mechanics through intermediary promotions in intermediary grades
This is incorrect
Under the Rules the post of Sub Assistant Engineers is not at all a promotional post for any categories of employees in the State on the contrary it is a direct recruitment post
It is not contested that 17 other employees similarly placed as the respondents herein were given the benefits of the said amended Notifications and were conferred both status of Sub Assistant Engineers and also the pay scale thereof for the reason that they were also diploma holder engineers though they were not in the pay scale of Rs300 600
This is a concurrent finding that these respondents have been discriminated and the State Government had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in the Agriculture Department
It has been brought to the notice of the Court that the Operators cum Mechanics would be absorbed in the existing vacancies in the category of Sub Assistant Engineers since injustice had been done to the respondents by keeping them in the panel since 1974 without taking any steps for their appointments as Sub Assistant Engineers along with others when such appointments were made and the assurance made before the Court
The fact that in implementation of the judgment of the learned single Judge the respondents have already been admitted to the benefits of the amended Rule is an additional reason for this Court not to interfere with the impugned judgment
We are therefore of the view that both the civil appeals have only to be dismissed
We do so accordingly
The parties are directed to bear their respective costs
YL Appeals dismissed


Summary:
For the recruitment of 71 officers in the Punjab Civil Services Executive Branch and Allied Services the Punjab Public Service Commission at the behest of the State of Punjab held a competitive examination
As per the requirement of the Punjab Civil Services Executive Branch Rules 1930 the applying candidates specified the posts in order of preference in their respective applications
One such candidate appellant VM Bansal who had initially indicated his first preference for the post of Excise  Taxation Officer intimated to the Commission but undisputedly before the declaration of the result that he wanted change of his preference so that his first preference was of Punjab Civil Service Executive Branch
This change was allowed by the Commission
Bansal s father who was a member of the Commission did not participate in the deliberations of the Commission when Bansal was interviewed
Of the 71 candidates declared successful Bansal was declared successful for a post in the Punjab Civil Service and appellant jaswant Singh Nerwal for the post of Tehsildar in the Allied Services
Some of the unsuccessful candidates challenged the entire selection on various grounds before the Punjab and Haryana High Court by means of a writ petition
On the other hand Nerwal through a separate writ petition challenged the change of preference allowed by the Commission to Bansal which led to Bansal becoming a Punjab Civil Service Officer and Nerwal a Tehsildar and claimed that he be declared successful to a post in the Punjab Civil Service in preference to Bansal
The High Court by a common judgment rejected the claim of Nerwal and dismissed his writ petition but allowed the writ petition preferred by the unsuccessful candidates in part inasmuch as the selection of Bansal as a Punjab Civil Service Officer and his consequential appointment was quashed
The High Court however did not disturb the selection of the remaining 70 successful candidates but 412 required Bansal to compete again with the other unsuccessful candidates as per its direction extracted in the judgment
The High Court in issuing the aforesaid direction applied the decision of this Court in A K Kraipak  Ors etc
V Union of India  Ors  to neutralise Bansal s father being a member of the Commission
And even though Bansal s father had not participated in the deliberations of the Commission when Bansal was interviewed his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate
Hence these two appeals by special leave one by Bansal and the other by Nerwal against the judgment of the High Court
Allowing the appeal of Bansal and dismissing the one filed by Nerwal the Court HELD 1 Besides Bansal s father there were four other members of the Public Service Commission and who had functioned as a Commission
There was a long list of as many 540 candidates to be interviewed and the interviews went on from 2491973 uptil 30101973
417G 2 Bansal s father did what was expected of him in having declined to participate in the deliberations of the Commission when Bansal went for the viva voce test
418C 3 No material has been shown to entertain the doubt that Bansal s father being a member of the Public Service Commission per se had the effect of other members keeping track of comparatives in order to single out Bansal as a successful candidate
There is not a word of mala fide suggested against the other members of the Public Service Commission of having shared the supposed animus of Bansal s father
There is therefore no reason to sustain the judgment of the High Court on this aspect of the case
418A B AK Kraipak  Ors etc
vs Union of India  Ors 19701 1 SCC 457 distinguished Javid Rasool Bhat  Ors
vs State of Jammu  Kashmir  Ors
   affirmed BN Nagarajan  Ors
vs State of Mysore  Ors
   referred to
Ashok Kumar Yadav  Ors
vs State of Haryana  Ors etc
 1985 Supp
SCR 657 relied upon
4 The manner in which the viva voce test is conducted no single 413 member can possibly usurp to himself the total functioning of the Commission and jealous as human nature is no other member can be expected to have abdicated his powers to another at that level and to oblige another
These circumstances do not give rise to the likelihood of Bansal s father espousing the cause of his son to the other four members of the Commission and monitor the performance of 540 candidates to be interviewed the results of written examination of which he was not alleged to be aware before hand
In these circumstances it is to uphold the view of the High Court requiring Bansal to be interviewed again so as to rub against the unsuccessful candidates and to suffer the consequence
418C H In the instant case the system of division of marks out of the allocated marks for the viva voce test amongst the actual number of members present and participating in the interview was not however commended by the Court nor did the Court approve the provision of 200 marks for the viva voce test because of the percentage now authoritatively fixed in Ashok Kumar Yadav s case
418F 5 Bansal has stayed put and working as an Officer in the Punjab Civil Service and his displacement at the present stage would otherwise be inequitous serving nobody s purpose due to the time lag
The unsuccessful candidates cannot possibly now at this stage due to age and other supervening factors be fit for the viva voce test so as to elbow out Bansal
The obedience of the directions of the High Court at this late stage would overly be counter productive and thus not worth sustaining
419A B 6 Once it is established that the change of preference could be made and it was intimated and approved timely the conclusion is inescapable that Bansal s first preference to a post in the Punjab Civil Service ranked superior to Nerwal s preference because of their interse ranking in the examination results
Thus the appeal of Nerwal has no substance and deserves rejection
419H 420A