Civil Appeal NO
383 Of 1976
Appeal by special leave from the Judgment and Order dated 12 6 1975 of the Andhra Pradesh High Court in Writ Appeal NO 313 of 1975
Connected with Civil Appeal NOS
1434 8577 266979  267079 1763 1781 77 2511 2625 2679 277677 332 333 909  93078 and SLPs 7076 176977 4246 437977 and 25179
P Rama Reddy G section Narayana and G N Rao for the Appellant in all the matters
B Parthasarthy for the Respondent in CAs 38376 144377 144477 for R for RR
2  for R17 CA 146377 for RR l  2 and R 10 in CA 146477 for R1 in CA 146677 for R1 146877 for both the Respondents 1470 77 for R for R 2 1481 for RR 176777 for R 1 932 176877 for RR 1 2 4 and 5 8 177377 for RR 1 4 and 5 2625 77 for R1 251177 for all the RRs
33278 for R3 93078 for RR
SLP 176976 for RR 1 4 5  7
K Ram Kumar and Mrs J Ramachandran for the RR in CA 147277 CA 147377 for RR 1 5 7 8 14 15 and CA 1485 for all RRs
A Subba Rao in CA 1434 for RR1 3 4 7 8 9  11 in CA 144077 for RR 1 2 3 4 6 7 10 11 13  16 in CA 145777 for Respondent Sole CA 145977 for RR 2 3 and for RR 1 2 16 20 22 23 28 30 32 35 and in CA 176477 for Respondent Sole
G Narasimhulu for all the Respondents in CA 178177
B Kanta Rao for RR 1 3 in CA 144177 in CA 144277 for RR 4 8 11 14 15 23 and 24 in CA 176977 for RR 1 35 37 47 49 62 64 65 67 79 81 83 85 87 89 91 99 101 104 106 108 110 114 116 117 119 123 in CA 2670 for RR 1 5 7 12 and 14 16 and 19 20 and in SLP 25179 for RR 1 8
The Judgment of the Court was delivered by SEN J
This and the connected 81 appeals by special leave and seven special leave petitions directed against various judgments and orders of the Andhra Pradesh High Court and the Andhra Pradesh Administrative Tribunal raise a common question Whether it is permissible for the State Government of Andhra Pradesh to enforce sub r
2 of r 5 of the Andhra Pradesh Revised Scales of Pay Rules 1969 hereinafter referred to as the Rules  issued by the State Government under proviso to article 309 of the Constitution
That depends on whether the Government is competent to withhold the Selection Grade pay scales contrary to FR 22a ii to which the respondents were entitled on their being appointed to Selection Grade posts
The Government tries to justify such fixation of pay at a lower level than the minimum of the Selection Grade pay scales on the basis that it was to ensure that seniors holding higher posts do not draw in such higher posts a pay less than what is drawn by their juniors in the lower posts in the Selection Grade
The litigative propensities of the Government know no bounds
The Government still assumes that it is within their powers to fix the pay of the respondents lower than the minimum of the pay scales of the Selection Grade posts to which they were promoted although the High Court has unequivocally struck down the impugned sub r
2 of r 5 of the Rules as ultra vires the State Government being violative 933 of articles 14 and 16 of the Constitution and being contrary to FR 22 a ii
It is somewhat unfortunate that the Government should have embarked upon this course of action thereby subjecting thousands of their employees into this fruitless litigation which is nothing but an exercise in futility resulting in wasteful expenditure of public money
We wish to impress upon the Government that they are in duty bound to respect the judgments and orders of the courts pronouncing upon the constitutional validity of the various rules orders and notifications issued by the Executive
To bring out the point involved it is necessary to state a few facts
By GO MS 173 Finance dated June 13 1969 the State Government issued the Andhra Pradesh Revised Scales of Pay Rules 1969 providing for revision of pay and creation of Selection Grade posts the number of such Selection Grade posts for every category being limited to 15 of the total number of posts in that category with a view to implement the recommendations of the One man Pay Commission appointed for the purpose
The Selection Grade scale was fixed by adding three increments to the maximum of the revised scale of pay
The pay scales for the Selection Grade so fixed were found to have a higher start than the minimum pay prescribed for the next higher category of posts
Some of the senior persons holding permanent posts in one category but holding posts in the next higher category on promotion were found to draw less pay in the higher posts as compared to their juniors in the lower category who were given the Selection Grade scale of pay
The Government felt that this would result in serious discontentment among the senior employees holding higher posts but drawing less pay than the minimum prescribed for the Selection Grade in the lower category
At a meeting of the Secretaries to Government held on June 24 1969 it was decided to set right this anomalous position by the issue of an executive order
Consequently the Government issued a departmental instruction in UO Note No 808PC69 I dated July 26 1969 directing that the pay of an employee placed in the Selection Grade shall be so fixed as not to exceed the pay of his seniors working in the higher post on promotion
Para 3 iii of the UO Note was as follows iii Since in many cases the minimum of the selection grade  is higher than the minimum of the next higher grade there is a possibility of a junior appointed to selection grade  hereafter drawing more pay than his senior who has already been promoted to higher grade
With a view to avoid such an anomaly it will be necessary to prescribe that a person promoted to a selection grade  shall draw the minimum of the remedy was by way of an appeal
That judgment has attained a 934 promotion category should be drawing less than such mini mum his pay shall be limited to the pay being drawn by such senior in his own scale
The direction contained in para 3iii of the aforesaid UO Note was struck down by Chinnappa Reddy J in section A Prabhakar  Ors
vs Government of Andhra Pradesh by his judgment dated December 26 1973 on the ground that the executive instruction could not pre vail over FR 22a ii and secondly fixation of pay at anything lower than the minimum of the scale of pay sanctioned for the Selection Grade posts was violative of articles 14 and 16 and was also contrary to the Directive Principles of State Policy enshrined in article 39 of the Constitution according to which there shall be equal pay for equal work
The learned Judge was of the view that the Government having created Selection Grade posts carrying a certain scale of pay and having appointed persons to those posts it was not open to them to allow that pay to some and deny to others on the ground that their seniors working elsewhere were not drawing the same scale of pay
The Government preferred a Letters Patent Appeal against the judgment of Chinnappa Reddy J and made a grievance that while the writ petition was pending the offending UO Note No 808PC 69 I dated July 26 1969 had been substituted by sub r
2 of r 5 of the Rules issued under GO MS 215 Finance dated September 5 1973 with retrospective effect from March 19 1969
That being so the Division Bench dismissed the appeal observing that the appropriate remedy was to file a review petition
Against the judgment of the Division Bench the Government preferred a petition for grant of special leave in the Supreme Court under article 136 of the Constitution being SLP Civil No 1878 of 1975 and this Court issued a show cause notice to the respondents on September 28 1975
But the Special Leave Petition was ultimately dismissed as withdrawn on October 27 1978 in view of the fact that a review petition had been filed
Sub r
2 of r 5 of the Rules inserted by GO MS 215 Finance dated September 5 1973 reads 2 Notwithstanding anything contained in sub rule 1 or any other rule relating to fixation of pay if a person in any post is promoted or appointed to the selection grade in that post he shall draw the minimum of such selection grade provided that if any of his seniors who is promoted or appointed by transfer to a higher post draws a pay in that 935 higher post less than such minimum his pay shall be limited to the pay so drawn by his senior
Explanation
For the purpose of this sub rule a person shall be deemed to be a senior to another even though both of them belong to two different classes categoriesgrades provided these two are sources for promotion or appointment by transfer to a higher post
In D Krishnamurthy  Ors
vs State of Andhra Pradesh  Anr
Writ Petition No 4459 of 1972 Muktadar J by his judgment dated August 12 1974 struck down the rule as it was violative of articles 14 and 16 of the Constitution
The learned Judge observed that in view of the decision of this Court in B section Vadera vs Union of India Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution whether retrospective or prospective in effect must be enforced if framed by the appropriate authority unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution
He was of the view that sub r
2 of r5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment guaranteed under articles 14 and 16 and was therefore void and unconstitutional
He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars by reason of sub r
2 of r5 of the Rules
The learned Judges observed that if FR 22a ii was applicable and there was no reason why it should not be made applicable the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs 500 which was the minimum of the time scale fixed for the Selection Grade of Deputy Tahsildars
According to him sub r
2 of r5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selection Grade but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar could not draw more pay than that drawn by his senior although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed
The learned Judge observed To put in the words Chinnappa Reddy J it amounts to denial of the 936 principle of equal pay for equal work  enshrined in article 39 of the Constitution as one of the Directive Principles of State Policy and violates articles 14 and 16 which guarantee equality before the law and equal opportunity in the matter of public employment The appellant in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh Finance and Planning Department Finance Wing admits that the judgment of Muktadar J in Krishnamurthy s case supra had become final because steps were not taken in time to go in appeal but nonetheless asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars it was wrong to suggest that all the judgments of the High Court involving a similar question had become final or that the Government had lost its right of appeal in other similar matters
We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same
There has been total failure on the part of the Government to realise that the replacement by sub r
2 of r5 of the Rules of the executive instruction contained in the UO Note does not cure the constitutional vice inherent in the governmental action
This is nothing but a plea of justification for the Government had in the meanwhile on the strength of the offending UO Note and sub r
2 of r 5 promoted thousands of their employees to Selection Grade posts in different departments but fixed their pay at a point lower than the pay drawn by their seniors in the next higher grade
There have been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affected
The Government instead of following a uniform policy have refixed the pay of some of the employees holding Selection Grade posts in compliance with the directions of the High Court but declined to do so in the case of others on the pretext that the re fixation would be done only in the case of employees who have secured such directions
It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle
We were asked to determine the validity of sub r
2 of r5
It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade in accordance with sub r2 of r5
We are afraid the question does not arise in these appeals
It is quite clear from the judgments under appeal that the validity of sub r
2 of r5 was not in question
We are constrained to observe that if the Government wanted 937 to question the correctness of the judgment in D Krishnamurthy s case the selection grade  provided that if his senior in the higher finality which cannot now be upset
In that judgment Muktadar J struck down sub r
2 of r5 as ultra vires the Government as being violative of articles 14 and 16 of the Constitution and as being not in conformity with FR 22aii
The effect of the judgment of Muktadar J in Krishnamurthy s case supra is that sub r
2 of r5 is wiped out for all purposes and the re fixation will have to be done as if sub r
2 of r 5 never existed
The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted
In the result the appeals and the special leave petitions are dismissed
There shall be no order as to costs
NVK Appeals  Petitions dismissed


Summary:
To implement the recommendations of a one man Pay Commission the State Government issued the Andhra Pradesh Revised Scales of Pay Rules 1969 providing for the revision of pay and creation of selection grade posts
The selection grade scale was fixed by adding three increments to the maximum of the revised scale of pay
While implementing the pay scales the Government realised that a senior holding a permanent post in one category but holding a post in the not higher grade on promotion would draw less pay in the higher post than a junior in the lower category who was given the selection grade
To avoid the anomalous situation thus created the Government by an executive order direct ed that the pay of an employee placed in selection grade shall be so fixed as not to exceed the pay of his senior working in the higher post on promotion
This executive instruction was struck down by the High Court as being violative of Articles 14 and 16 and also on the ground that the executive instruction could not prevail over Fundamental Rule 22 a ii
The Government thereupon introduced Rule 52 in the Rules with retrospective effect from the date of the original order
In D Krishnamurthy  Ors vs State of Andhra Pradesh  Anr
this rule was struck down by the High Court as being violative of Articles 14 and 16
No appeal was however preferred from the judgment of the High Court striking down the rule
Instead of following a uniform policy in revising the pay of all employees in compliance with the direction of the High Court the Government re fixed the pay of some of the employees holding selection grade posts but declined to do so in the case of others on the ground that the re fixation would be done only in the case of employees who had secured such directions
In the appeals by the Government to this Court it was contended that it was wrong to suggest that since no appeal had been preferred against the judgment of the High Court in D Krusgbanurthy s case all the judgments of the High Court involving a similar question had become final become D Krishnamurthy s case related to an altogether different category of employees of the State Government
931 Dismissing the appeals  HELD 1
When the High Court issues a writ direction or order under article 226 of the Constitution it is not open to the State Government to implement the decision with regard to some and deny relief to others although they belong to the same class of persons and are equally governed by the principles laid down
The State Government is expected to adopt a uniform policy In regard to all its employees
936 C D 2
Replacement of an executive instruction by the State Government by a rule framed under article 309 of the Constitution for the fixation of pay of a person promoted to the Selection Grade at a stage lower than the minimum of the scales of pay of such Selection Grade so as not to exceed the pay of his seniors working in the higher posts on promotion does not cure the constitutional ice inherent in the Government action as the provision is violative of articles 14 and 16 of the Constitution
935 G H 3
The judgment of the High Court by which sub r
2 of r 5 of the Andhra Pradesh Revised Scales of Pay Rules 1969 having been struck down as offending articles 14 and 16 of the Constitution and as being not in conformity with FR 22aii not having been appealed from had attained a finality and the re fixation of pay if any had to be done as if sub r
2 of r 5 never existed 937 B 4
It is not open to the Government to question the correctness of the judgment of the High Court when it had attained finality particularly when in compliance with the directions it had re fixed the pay of some of the employees in the Selection Grade posts on the pretext that the right of appeal was not lost in the case of others in respect of whom no such direction has been issued
At any rate the point not having been taken before the High Court could not be allowed to be raised for the first time under article 136 of the Constitution
936 H