Appeal No 128 of 1955
Appeal by special leave from the judgment and order dated March 5 1953 of the Bombay High Court in I T R No 40 of 1952
H N Sanyal Additional Solicitor General of India K N Rajagopala Sastri and R H Dhebar for the appellant
B R L Aiyangar for the respondent
April 28
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This is an appeal by the Commissioner of Income tax Bombay by special leave and it raises a short question of law under section 33B of the Income tax Act
The respondent assessee had been registered as a firm under section 26A of the Act for the year 1946 47
For the assessment years 1947 48 1948 49 and 1949 50 the Income tax Officer made the assessment on the respondent on June 7 1949 June 7 1949 and September 23 1949 respectively under section 233 of the Act
The Income tax Officer made an estimate about the profits of the respondent under the proviso to section 13 and computed the total income of the respondent at Rs 95053 Rs 93430 and Rs 83752 for the said years respectively
The respondent had applied for and obtained renewal of registration of the firm
The Income tax Officer had also passed an order under section 236 of the Act and allocated the shares of the various parties
Against the said assessment orders the respondent preferred an appeal to the Appellate Assistant Commissioner
On November 4 1950 the Appellate 91 716 Assistant Commissioner reduced the respondent s estimated profit by Rs 28250 in the assessment year 1947 48 and by Rs 19000 in the assessment year 1948 49
The respondent s appeal in regard to the assessment year 1949 50 was pending before the Appellate Assistant Commissioner
Meanwhile it had come to the notice of the Commissioner of Income tax that the respondent firm which had been granted renewal of registration by the Income tax Officer was not a firm which could be registered under the Act as one of the partners of the firm was a minor
The Commissioner then took action under section 33B1 of the Act and issued notice to the respondent to show cause why the assessments made under section 233 of the Act and the registration granted under section 26A should not be cancelled
After hearing the parties the Commissioner passed an order under section 33B1 on June 5 1951 by which he cancelled the registration of the firm under section 26A and directed the Income tax Officer to make fresh assessments against the respondent as an unregistered firm for all the three years
As a result of this revisional order passed by the Commissioner of Income tax the Income tax Officer passed fresh orders
The respondent preferred five appeals to the tribunal two of these were against the orders passed by the Appellate Assistant Commissioner under section 31 and related to the assessment years 1947 48 and 194849 while the remaining three challenged the orders passed by the Commissioner of Income tax under section 33B1 of the Act and related to the assessment years 1947 48 1948 49 and 1949 50
In these three appeals with which we are concerned the respondent had urged that the Commissioner was not competent in law to pass an order setting aside an assessment which had been confirmed or modified by the Appellate Assistant Commissioner that the orders passed by the Commissioner under section 33B1 were bad in law as they directed the Income tax Officer to pass an order in a particular manner and that the orders passed by the Income tax Officer subsequent to the cancellation of the respondent s registration were bad in law as they were passed with 717 out giving notice to or hearing the respondent
On January 2 1952 the tribunal upheld the contentions raised by the respondent and allowed the appeals
The appellant then moved the tribunal under section 661 of the Act for referring the questions specified in its application for the opinion of the High Court
The tribunal accordingly framed the following three questions and referred them to the High Court of Bombay  1
Whether on the facts and circumstances of the case the Commissioner of Income tax acting under section 33B1 can set aside the orders passed by the Appellate Assistant Commissioner for the assessment years 1947 48 and 1948 49  2Whether on the facts and circumstances of the case the order passed by the Commissioner of Income tax dated 5th June 1951 is bad in law as it directs the Income tax Officer to pass an order in a particular manner  3Whether on the facts and circumstances of the case orders passed by the Income tax Officer dated 21 6 52 are bad in law as fresh notices as required by Sections 22 and 23 of the Income tax Act were not given by the Income tax Officer to the assessee   This matter was heard by the High Court on March 5 1953
In regard to the assessments made for the years 1947 48 and 1948 49 the High Court held that the question raised by the appellant was concluded by the judgment already delivered by it in the Commissioner of Income Tax Bombay North vs Tejaji Farasram Kharawala 1
In Tejaji s case the High Court had held that when an appeal is provided from a decision of the tribunal and the appeal court after hearing the appeal passes an order the order of the original court ceases to exist and is merged in the order of the appeal court and although the appeal court may merely confirm the order of the trial court the order that stands and is operative is not the order of the trial court but the order of the appeal court
In that view of the matter since the Income tax Officer s order 1 718 granting registration to the respondent was assumed to have merged in the appellate order the revisional power of the Commissioner could not be exercised in respect of it
The same view has been taken in the majority decision of the Patna High Court in Durgabati and Narmadabala Gupta vs Commissioner of Income tax 1
In respect of the Income tax Officer s order renewing registration to the respondent for the year 1949 50 the High Court took the view that the revisional power of the Commissioner could not be exercised even in respect of this order because the propriety or the correctness of this order was open to consideration by the Appellate Assistant Commissioner in the respondent s appeal then pending before him Commissioner of Income tax vs Amritlal Bhogilal subnom 2
In respect of this order the High Court had framed an additional question
It was in these terms  Whether the order of the Commissioner acting under section 33B1 setting aside the order of the Income tax Officer where an appeal against that order was pending before the Appellate Assistant Commissioner was valid  The High Court answered this additional question also in favour of the assessee
In the result the High Court held that the Commissioner s order cancelling the respondent s registration for all the three years in question was invalid
That is why the High Court did not think it necesssary to answer the remaining two questions framed by the tribunal
The application subsequently made by the appellant to the High Court for a certificate under section 66A 2 was rejected by the High Court
Thereupon the appellant applied for and obtained special leave from this Court on March 22 1954
The appellant s contention is that the view taken by the High Court that the Commissioner of Income tax could not have exercised his revisional power in respect of the Income tax Officer s order granting registration to the respondent with regard to all the three years in question is based on a misconstruction of the relevant provisions of s33B of the Act
Section 33B 1 which confers revisional power on 1 2 719 the Commissioner provides that the Commissioner may call for and examine the record of any proceeding under the Act and if he considers that any order passed therein by the Income tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue he may after giving the assessee an opportunity of being heard and after making and causing to be made such enquiry as he deems necessary pass such order thereon as the circumstances of the case justify including an order enhancing or modifying the assessment or cancelling the assessment or directing a fresh assessment
Sub section 2 provides that orders of re assessment made under section 34 cannot be revised under section 33B 1 and adds that the said revisional power cannot be exercised after the lapse of two years from the date of the order sought to be revised
Sub section 3 gives the assessee the right to prefer an appeal to the appellate tribunal against the Com missioner s revisional order within the prescribed period and sub section
4 provides for the procedure for filing such an appeal
In the present appeal two short questions fall to be decided under section 33B 1
Does the order passed by the Income tax Officer granting registration to the assessee firm continue to be an order passed by the Income tax Officer even after the assessee s appeal against the assessment made by the Income tax Officer on the basis that the assessee was a registered firm has been disposed of by the Appellate Assistant Commissioner  In other words where the appeal preferred by an assessee against his assessment has been considered and decided by the Appellate Assistant Commissioner does the order of registration along with the subsequent order of assessment merge in the appellate order  If in law the order of registration can be said to merge in the final appellate order then clearly the Commissioner s revisional power cannot be exercised in respect of it
This question arises in respect of the registration order in regard to the two assessment years 1947 48 and 1948 49
The other question which also falls to be decided is whether the order of registration in respect of the assessment year 720 1949 50 can be made the subject matter of the exercise of the Commissioner s revisional power even though the assessee s appeal against the assessment for the said year is pending before the Appellate Assistant Commissioner at the material time
There can be no doubt that if an appeal is provided against an order passed by a tribunal the decision of the appellate authority is the operative decision in law
If the appellate authority modifies or reverses the decision of the tribunal it is obvious that it is the appellate decision that is effective and can be enforced
In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal
As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement but the question is whether this principle can apply to the Income tax Officer s order granting registration to the respondent
In dealing with this question it would be necessary first to refer to the relevant provisions of the Act in regard to the granting of registration
Section 26A of the Act lays down the procedure for the registration of firms
An application has to be made by the firm in that behalf specifying the particulars prescribed by the said section and by the material rules framed under the Act
If registration is granted by the Income tax Officer it enables the Income tax Officer to adopt the procedure prescribed by section 23 5 a for making assessment orders in respect of the registered firm
If a firm is not registered the Income tax Officer is required to follow the procedure prescribed by section 23 5 b in making assessment orders in respect of unregistered firms
A firm is an assessee under section 2 2 whether it is registered under section 26A or not
The Act does not impose an obligation on firms to apply for and obtain registration
The Act in terms does not purport to define the effect of registration nor does it enumerate the rights of parties on registration of firms
Section 23 5 a and b provide for the machinery for 721 collecting or recovering the tax and in no sense can they be treated as charging sections
Broadly stated even if a firm is registered in pursuance of an application made under section 26A no difference arises in the liability of the firm or its individual partners to be taxed for the total income as may be determined by the Income tax Officer under sections 3 and 4 of the Act
The computation of taxable income is not at all affected by the machinery provided by section 23 5
The decision in Shapurji Pallonji vs Commissioner of Income Tax Bombay 1 on which Mr Ayyangar himself relied clearly brings out and emphasizes this position
It is true that the Income tax Officer is empowered to follow the two methods specified in section 23 5 a and b in determining the tax payable by registered and unregistered firms respectively and making the demand for the tax so found due but this does not affect the computation of taxable income
It is important to bear in mind that the order granting registration to an assessee firm is an independent and separate order and it merely affects or governs the procedure to be adopted in collecting or recovering the tax found due
It is not disputed that the registration granted by the Income tax Officer to an assessee firm can be cancelled by him either under section 23 4 or under r 6B
It is also clear that the Income tax Officer s order granting registration can be cancelled by the Commissioner under section 33B 1
The argument for the respondent however is that as a result of the decision of the appeal preferred by him against the Income tax Officer s order of assessment the order of registration passed by the Income tax Officer in favour of the respondent has ceased to be the order passed by the Income tax Officer as such
It is therefore necessary to inquire whether the order of registration passed by the Income tax Officer can be challenged by the department before the Appellate Assistant Commissioner where the assessee firm has preferred an appeal against the order of assessment
The decision of this question would obviously depend upon the relevant provisions of the 11945 13 722 Act in respect of appeals to the Appellate Assistant Commissioner and the powers of the Appellate Assistant Commissioner
Section 30 1 gives the assessee the right to prefer appeals against the orders specified in the said section
The assessee firm can for instance object to the amount of income assessed under section 23 or section 27
The assessee firm can also object to the order passed by the Income tax Officer refusing to register it under section 23 4 or section 26A
It can likewise object to the cancellation by the Income tax Officer of its registration under section 23 4
It is significant that whereas an appeal is provided against orders passed by the Income tax Officer under section 23 4 or section 26A either refusing to register the firm or cancelling registration of the firm no appeal can be filed by the department against the order granting registration
Indeed it is patent that the scheme of the Act in respect of appeals to the Appellate Assistant Commissioner is that it is only the assessee who is given a right to make an appeal and not the department
Thus there can be no doubt that the Income tax Officer s order granting registration to a firm cannot become the subjectmatter of an appeal before the Appellate Assistant Commissioner
The next question which must be considered is whether the Income tax Officer s order granting registration to a firm can be challenged by the department during the hearing of the firm s appeal against the final order of assessment made by the Income tax Officer  The powers of the Appellate Assistant Commissioner are to be found in section 31 of the Act
Section 31 3 a authorises the Appellate Assistant Commissioner to confirm reduce enhance or annul the assessment under appeal
Under section 31 3 b wide powers are given to the appellate authority to set aside the assessment or direct the Income tax Officer to make fresh assessment after making such further enquiry as the Income tax Officer may think fit or as the Appellate Assistant Commissioner may direct
The Appellate Assistant Commissioner is also given the authority in the case of an order cancelling the registration of the firm under sub section
4 of section 23 or 723 refusing to register a firm under sub section
4 of section 23 or section 26A or to make a fresh assessment under section 27 to confirm such order or cancel it and direct the Incometax Officer to register the firm or to make a fresh assessment as the case may be
This section further lays down that at the hearing of an appeal against the order of an Income tax Officer the Income tax Officer shall have the right to be heard either in person or by his representative
It is thus clear that wide powers have been conferred on the Appellate Assistant Commissioner under section 31
It is also clear that before the appellate authority exercises his powers he is bound to hear the Income tax Officer or his represent
ative
It has been urged before us by Mr Ayyangar that these provisions indicate that in exercise of his wide powers the Appellate Assistant Commissioner can in a proper case after hearing the Income tax Officer or his representative set aside the order of registration passed by the Income tax Officer
We are not prepared to accept this argument
The powers of the Appellate Assistant Commissioner however wide have we think to be exercised in respect of the matters which are specifically made appealable under section 301 of the Act
If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the appellate authority to entertain a plea about the correctness propriety or validity of such an order
Indeed if the respondent s contention is accepted it would virtually give the department a right of appeal against the order in question and there can be no doubt that the scheme of the Act is not to give the department a right of appeal to the Appellate Assistant Commissioner against any orders passed by the Income tax Officer
The order granting registration can be cancelled by the Income tax Officer himself either under r 6B or under section 234
It may be cancelled by the Commissioner in exercise of his revisional power under section 33 B but it cannot be cancelled by the Appellate Assistant Commissioner in exercise of his appellate jurisdiction under section 31 of the Act
It is true that 92 724 in dealing with the assessee s appeal against the order of assessment the Appellate Assistant Commissioner may modify the assessment reverse it or send it back for further enquiry  but any order that the Appellate Assistant Commissioner may make in respect of any of the matters brought before him in appeal will not and cannot affect the order of registration made by the Income tax Officer
If that be the true position the order of registration passed by the Income tax Officer stands outside the jurisdiction of the Appellate Assistant Commissioner and does not strictly form part of the proceedings before the appellate authority
Even after the appeal is decided and in consequence the appellate order is the only order which is valid and enforceable in law what merges in the appellate order is the Income tax Officer s order under appeal and not his order of registration which was not and could never become the subject matter of an appeal before the appellate authority
The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income tax Officer in the present case
In this connection we may refer to the argument which Mr Ayyangar seriously pressed before us
He contended that when the Appellate Assistant Commissioner hears the assessee s appeal he is himself computing the total taxable income of the assessee and in discharging his obligation in that behalf he may be entitled to consider all relevant and incidental questions
In support of this argument Mr Ayyangar referred us to the decision in Rex vs The Special Commissioner of Income Tax ex parte Elmhirst 1
The point which arose before the King s Bench Division in this case was whether when a notice of appeal has been given it was open to the assessee to withdraw his appeal and the Court held that once notice of appeal is given the appellate authority was entitled and indeed bound to see that a true assessment of the amount of the taxpayer s liability was arrived at
We are unable to see how this decision can really help the 1 725 respondent in the present case
When an appeal is taken before the Appellate Assistant Commissioner undoubtedly he is bound to examine the case afresh but that cannot bring within the purview of his appellate jurisdiction matters which are deliberately left out by the Act
If section 301 does not provide for an appeal against a particular order legislature obviously intends that the correctness of the said order cannot be impeached before the appellate authority
The jurisdiction and powers of the appellate authority must inevitably be determined by the specific and relevant provisions of the Act
In this connection it may be useful to compare the relevant and material features of the revisional powers conferred on the Commissioner by sections 33A and 33B respectively
The Commissioner s revisional power under section 33A cannot be exercised to the prejudice of the assessee in any case
It can be exercised in respect of orders passed by any authority subordinate to the Commissioner but in no case can the revisional order prejudicially affect the assessee
It is significant that the explanation to section 33A expressly provides that the Appellate Assistant Commissioner shall be deemed to be an authority subordinate to the Commissioner
In other words in exercise of this revisional power the Commissioner may modify or reverse in favour of the assessee even the orders passed by the Appellate Assistant Commissioner
The position Under section 33B however is different
The Commissioner s revisional power under section 33B can be exercised only in respect of orders passed by the Income tax Officer
The appellate orders are outside the purview of section 33B
That is one important distinction between the two revisional powers
The other important distinction is that whereas under section 33A the revisional jurisdiction cannot be exercised to the prejudice of the assessee under section 33B the Commissioner can in exercise of his revisional power make orders to the prejudice of the assessee
It is not disputed that under section 33B erroneous orders passed by the Income tax Officer which are prejudicial to the revenue can be revised by the Commissioner
Now 726 the Income tax Officer s order registering the firm is not appealable and so it cannot become the subjectmatter of an appeal before the Appellate Assistant Commissioner
Such an order can therefore be revised by the Commissioner under section 33B whenever he considers that it has been erroneously passed
In the present case there is no doubt that the respondent firm cannot be validly registered in view of the fact that one of its partners is a minor and so on the merits the Commissioner s order is clearly right
We must accordingly hold that the High Court was in error in taking the view that the Commissioner had no authority to set aside the registration order passed by the Income tax Officer granting registration to the respondent for the years 1947 48 and 1948 49
The case in regard to the subsequent year 1949 50 presents no difficulty
The appeal preferred by the respondent against the Income tax Officer s assessment order in respect of this year was pending at the material time before the Appellate Assistant Commissioner and so no question of merger arose in respect of the order granting renewal of registration for this period
There can be no doubt that even on the theory of merger the pendency of an appeal may put the order under appeal in jeopardy but until the appeal is finally disposed of the said order subsists and is effective in law
It cannot be urged that the mere pendency of an appeal has the effect of suspending the operation of the order under appeal
The High Court however appears to have taken the view that the revisional power is an extraordinary power and can be exercised only for unusual and extraordinary reasons
It was also assumed by the High Court that in the pending appeal the department would have an alternative remedy because according to the High Court the department could have challenged the validity or the propriety of the respondent s registration and could have asked the Appellate Assistant Commissioner to cancel it
As we have already pointed out the department could not challenge the validity of the registration order in the assessee s appeal before the appellate authority and so the argument that the 727 department had an alternative remedy is not correct
It is clear from the judgment of the High Court that it is the assumption that the department had an alternative remedy which weighed with the learned judges in reaching their final conclusion
Then the argument that the extraordinary revisional power must be exercised only for extraordinary reasons is really not very material
Whether or not the revisional power can be exercised in a given case must be determined solely by reference to the terms of section 33B itself
Courts would not be justified in imposing additional limitations on the exercise of the said power on hypothetical considerations of policy or the extraordinary nature of the power
We must therefore hold that the High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondent s registration for the year 1949 50
The result is that the view taken by the High Court must be reversed and the first question framed by the tribunal as well as the additional question framed by the High Court must be answered in favour of the appellant
Then there remain two other questions which were framed by the tribunal but have not been considered by the High Court
The learned counsel appearing for both the parties agree that we need not remit these two questions to the High Court with the direction that the High Court should deal with them in accordance with law it has been conceded before us that if the principal question about the Commissioner s power under section 33B1 to cancel the respondent s registration is answered in favour of the appellant then the two remaining questions would become academic and answers to them would also have to be in favour of the appellant
It is true by his order the Commissioner purported to set aside the assessment orders made under section 233 and section 55 and directed the Incometax Officer to make fresh assessments according to law for each of the years in question
If this part of the order is literally construed it would clearly be open to the objection raised by the respondent
The assessment orders passed by the Income tax Officer for the years 1947 48 and 1948 49 had been modified by the 728 Appellate Assistant Commissioner and in that sense they had ceased to be the orders of assessment passed by the Income tax Officer himself and so the Commissioner could not have exercised his revisional power under section 33B1 in respect of the said appellate orders but we are inclined to think that the Commissioner did not intend to set aside the assessments in this sense
It is clear from the order read as a whole that having cancelled the respondents registration the Commissioner wanted to direct the Income tax Officer to make suitable consequential amendment in regard to the machinery or procedure to be adopted to recover the tax payable by the respondent
In fact it is conceded that in his subsequent order the Income tax Officer has accepted the figure of the taxable income of the respondent as determined by the appellate authority for the relevant years and has proceeded to act under section 235b on the basis that the respondent is an unregistered firm
Therefore we cannot hold that the order passed by the Commissioner is bad in law on the ground that  he directed the Income tax Officer to pass the order in a particular manner 
The answer to question No 2 would accordingly be in the
negative
Then as regards question No 3 it is difficult to understand how this question can be said to arise from the proceedings before the tribunal
This question challenges the validity of the procedure adopted by the Income tax Officer in passing fresh orders against the respondent
This proceeding is clearly subsequent to the impugned order of the Commissioner under section 33B1 and so we are unable to see how the tribunal allowed the respondent to raise this contention in appeals which had been filed by the respondent against the Commissioner s order under section 33B1
Besides it has been fairly conceded by Mr Ayyangar before us that when the Income tax Officer merely proceeded to adopt a different machinery to recover the tax due from the respondent in consequence of the cancellation of the respondent s registration there was no occasion or need to issue another notice against the respondent
We must accordingly answer question No 3 also in the negative
729 In the result all the questions framed in this case are answered in favour of the appellant
The order passed by the High Court is set aside and the appeal is allowed with costs throughout
Appeal allowed


Summary:
The appellants are members of the Andhra Pradesh Engi neering Subordinate Service as Supervisors
The cadre of supervisors includes degree holders in Engineering and diploma or licence holders
The appellants are diploma holder supervisors
Their two fold grievance was 1 dis crimination in the matter of promotion in as much as the quota of promotion is four to one from amongst the graduate supervisors and non graduate supervisors respectively and 2 disparity in the matter of grant of different pay scales to graduate supervisors and non graduate supervisors
For the redressal of their first grievance the non graduate supervisors had earlier in Mohd Sujat Ali vs Union of India   challenged the validity of the Andhra Pradesh Engineering Service Rules 1967 which gave preferential treatment to graduate supervisors for promotion to the post of Assistant Engineer
They had con tended that this amounted to denial of equal opportunity to non graduate supervisors thus violating the equality clause enshrined under Articles 14 and 16 of the Constitution
This Court rejected the challenge holding that the graduate supervisors had always been treated as a distinct and sepa rate class from non graduate supervisors and that they were never fused into one class
423 The constant appeal relates to their second grievance and arises out of the writ petition filed by the non gradu ate supervisors in the High Court of Andhra Pradesh chal lenging discrimination in the matter of grant of different pay scales to graduate and non graduate supervisors
Their contention was that they were entitled to the same scale of pay as prescribed for the graduate supervisors on the prin ciple of equal pay for equal work as they constituted the same service and performed the same duties and functions as those performed by graduate supervisors
The State Govern ment contested the case on the pleading that graduate super visors and diploma supervisors always remained separate and they were never fused into one service
It was further contended that even though the two class of employees dis charged the same functions and carried out similar duties the State was justified in prescribing different pay scales for historical reasons and also on the basis of difference in the educational qualifications
The learned Single Judge allowed the writ petition
On appeal by the State the Division Bench set aside the judg ment of the learned Single Judge and dismissed the writ petition on the finding that the State practised no discrim ination and the appellants were not entitled to relief on the principle of equal pay for equal work
Before this Court it was contended on behalf of the appellants that 1 the graduate and non graduate supervi sors constituted the same class as they belonged to the same service and both the class of officers were fused into one as the two posts were inter changeable 2even if the two class of officers constituted two different categories since they had been carrying out of the same work and per forming the same duties carrying the same responsibility without any distinction the doctrine of equal pay for equal work was fully applicable and it was not necessary that the two class of officers must belong to one integrated service and iii even if the appellant s grievance regarding viola tion of Articles 14 and 16 of the Constitution was not sustainable the appellants were entitled to the same scale of pay as granted to the graduate supervisors on the princi ple of equal pay for equal work  enshrined under Article 39d of the Constitution
Dismissing the appeal this Court HELD 1 There is a basic difference between the two class of supervisors as graduate supervisors hold degree in Engineering while non graduate supervisors are only Diploma and Licence holders and they have all along been treated differently on the basis of difference in 424 educational qualifications
Classification of Supervisor into two classes on the basis of historical reasons is valid and it does not offend Articles 14 or 16 of the Constitu tion
431B Mohammad Sujat Ali vs Union of India referred to
2 Since classification on the basis of educational qualification is a valid consideration for discriminating in matters pertaining to promotion to higher post there is no reason as to why the same principle is not applicable for prescribing scales of pay
432C 3 Classification in service rounded on the basis of educational and academic qualification is now well recog nised
It is open to the administration to give preference to a class of employees on the basis of educational qualifi cations having regard to the nature of duties attached to the post for the purpose of achieving efficiency in public services
432B Union of India vs Dr Mrs SB Kohli  and State of Jammu  Kashmir vs Triloki Nath Khosa   referred to
4 The principle of equal pay for equal work  is not an abstract one
It is open to the State to prescribe dif ferent scales of pay for different cadres having regard to nature of duties responsibilities and educational qualifi cations
Different grades are laid down in service with varying qualification for entry into a particular grade
Higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres
433G H 434A State of Mysore vs P Narasing Rao   referred to
5 Where two class of employees perform identical or similar duties and carry out the same functions with the same measure of responsibility having same academic quali fications they would be entitled to equal pay
If the State denies them equality in pay its action would be violative of Articles 14 and 16 of the Constitution and the Court will strike down the discrimination and grant relief to the aggrieved employees
But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing different scales of pay
If on an analysis of the relevant rules 425 orders nature of duties functions measure of responsibil ity and educational qualifications required for the rele vant posts the court finds that the classification made by the State in giving different treatment to the two class of employees is rounded on rational basis having nexus with the objects sought to be achieved the classification must be upheld
Principles of equal pay for equal work is applicable among equals it cannot be applied to unequals
435E G Federation of All India Customs and Central Stenogra phers Recognised vs Union of India   State of UP v JP Chaurasia  and Mewa Ram Kanojia vs All India Institute of Medical Sciences Judg
Today  referred to
6 This Court granted relief in a number of cases after recording findings that the aggrieved employees were dis criminated in violation of the equality clause under Arti cles 14 and 16 of the Constitution without there being any rationale for the classification even though in some cases the two class of employees did not constitute the same service
434C Randhir Singh vs Union of India   P Savita vs Union of India  Dhirendra Chamouli vs State of UP  Surinder Singh vs Engineer in Chief CPWD  Bhagwan Dass vs State of Haryana 1987 4 SCC 634 and Jaipal vs State of Haryana 1988 3 SCC 354 referred to
7 Article 39d contained in Part IV of the Constitu tion ordains the State to direct its policy towards secur ing equal pay for equal work for both men and women
Provi sions contained in the Chapter on Directive Principles of State Policy cannot be enforced by courts although the principles contained therein are fundamental in nature for the governance of our country
432H 433A 8 Fundamental rights and the Directive Principles constitute Conscience of the Constitution
The Constitu tion aims at bringing about a synthesis between Fundamental Rights  and Directive Principles of State Policy  by giving to the former a place of pride and to the latter a place of permanence together they form core of the Constitution
They constitute its true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution
433D Keshavanand Bharti vs State of Kerala 1973 4 SCC 225 referred to
426 9 The Court has no power to direct the Legislature to frame laws to give effect to the Directive Principles as contained in Part IV of the Constitution or to injunct the Legislature from making any such law
But while considering the question of enforcement of fundamental rights of a citizen it is open to the Court to be guided by the Direc tive Principles to ensure that in doing justice the Princi ples contained therein are maintained
433A B