ivil Appeal No 2969 of 1983 etc
From the Judgment and Order dated 175
1982 of the Delhi High Court in Civil Writ No 1231 of 1979
G Ramaswamy Additional Solicitor General Govinda Mukhoty Dr YS Chitale VD Misra MK Ramamurthi NC Talukdar Mrs CM Chopra BP Maheshwari RS Rama MA Krishnamurthy NL Kakkar Dr Meera Aggarwal and RC Misra for the appearing parties
The Judgment of the Court was delivered by NATARAJAN J
The genesis for these appeals by special leave the special leave petition and the petition under Article 32 of the Constitution is the grant of pay scales at the rates recommended by the Shiv Shanker Committee for the employees of the Delhi Electricity Supply Undertaking to only a section of the ministerial staff of the New Delhi Municipal Committee who happened to be working in the elec tricity wing of the said Committee at the relevant time
There is a good deal of factual material and historical background to be covered 816 for a full and proper appreciation of the contentions of the appellants and the petitioners on the one hand and the respondents on the other in these appeals and petitions
We will therefore concern ourselves with that exercise before taking up the contentions of the parties
In the Union Territory of Delhi there are two main civic bodies viz the New Delhi Municipal Committee for short of NDMC and the Delhi Municipal Corporation for short the MCD
The NDMC comprises of New Delhi as it existed prior to 1947 and was constituted under the Punjab Municipal Act 1911
The NDMC discharges all civic functions including supply of water and electricity in the areas falling within its jurisdiction
In 1957 the Delhi Municipal Corporation Act came to be enacted and in pursuance thereof the Delhi Municipal Corporation was constituted amalgamating within itself a few other smaller civic bodies which existed inde pendent of the NDMC and the resultant position was that the rest of the areas fell within the jurisdiction of the Munic ipal Corporation of Delhi
The NDMC forming a compact unit had divided its civic work into various departments
Besides engaging technical staff the NDMC engaged non technical staff such as Municipal staff clerks etc for working in the various departments including the electricity and water supply departments
In so far as the non technical staff are concerned they con stitute one unified cadre and are liable to transfer from one department to another
They are governed by a common channel of seniority
in respect of each class of employees with common seniority list
The set up of the MCD is however different since the Delhi Municipal Corporation Act provides for the constitu tion of three separate and independent wings viz the elec tricity the general and the water
sewage and disposal wings
The electricity wing came to be designated as the Delhi Electricity Supply Undertaking hereinafter referred to as DESU and is governed by an independent budget and headed by a separate and independent General Manager and its employees are governed by a separate cadre and a separate seniority list
The general wing of the MCD performs the other general civic duties and functions
The third wing is concerned with the distribution of water and the disposal of sewage etc
and it is also independent of the general wing
To satisfy the demands of the employees of the MCD NDMC etc
the Government accepted the report of the Third Pay commission 817 appointed by it and the pay scales as recommended by the Pay Commission were accepted by the NDMC as well as the general wing of the MCD
The technical staff of DESU claimed higher scales of pay as they were not satisfied with the pay scales recommended by the Pay Commission
The Government therefore constituted a Committee known as the Shiv Shanker Committee hereinafter the SS Committee for short to go into the question of revision of pay scales etc
of the technical staff alone of DESU and the Committee submitted its report in 1973
The non technical or ministerial staff of DESU who were not covered by the report of the SS Committee demanded and agitated that they should also be granted pay at the rates recommended by the SS Committee
The DESU conceded the demand of the minisiterial staff at its meetings held in May 1973 and decided to revise the pay scales of the non technical staff also working in DESU to the level recommended by the SS Committee
Since the technical and ministerial staff working in DESU were granted the SS Committee pay scales by the MCD the NDMC was of the view that the technical and ministerial staff working in the electricity wing of NDMC should also have the benefit of revised pay scales recommended by the SS Committee
This view was taken on the assumption that the staff working in the electricity wing of the NDMC were performing the same or similar functions and duties as those performed by the staff of DESU and hence parity of pay and allowances should be maintained
Accordingly the NDMC passed a Resolution No 154 on 19101973 that the benefits of pay and allowances as per SS Committee Report be given to the staff of the electricity wing of NDMC
By another Reso lution dated 7
1 1974 the NDMC decided to give the benefit of the revised pay scales with effect from i472 to fall in line with the actions of the DESU
The grant of SS Committee pay scales to only those members of the ministerial staff working in the electricity wing brought about discontentment amount the staff working in the general wing of the NDMC
They claimed they should also be paid at the rates prescribed by the SS Committee and not as per the scales of pay recommended by the Third Pay Commission
Two of the employees of the general wing filed a writ petition W No 307 of 1974 against NDMC and the Delhi
Administration praying for quashing of the Resolution dated 71
1974 for implementing the earlier Resolution passed in favour of the staff 01 the electricity wing
Prakash Narain J as he then was did not quash the Resolution but instead issued
a writ of prohibition against the NDMC not to imple ment the Resolution
The learned Judge held that 818 the Resolution was discriminatory in nature but since the staff working in the electricity wing had not been made parties and furthermore the petitioners had not filed the petition In a representative capacity the proper course would be to forbear the implementation of the Resolution by the NDMC till such time the NDMC considered afresh the question of the revision of pay scales for all sections of the ministerial staff in accordance with law
In compliance with the directions of the learned Judge the NDMC considered the matter afresh and taking into con sideration its financial constraints
it passed a revised Resolution on 25675 which resulted in all the non techni cal staff being treated equal and being granted uniform pay scales at the rates recommended by the Third Pay Commission and not at different rates for different wings
This resolu tion lead to discontent amount the ministerial staff of the electricity wing since their pay scales were reduced to the rates recommended by the Third Pay Commission
Consequently some of the affected members of the electrical wing filed a writ petition CW No 1388 of 1975 before the Delhi High Court challenging the Resolution of the NDMC dated 25675
The High Court disposed of the writ petition on 18277 on the assurance given by the NDMC that the whole position would be reviewed after giving all the parties including the ministerial staff of the electricity wing due notice of the matter
As against the judgment of Prakash Narain J the NDMC also filed a Letters Patent Appeal
However in view of the subsequent Resolutions that had been passed the NDMC withdrew itself from the appeal
But at the instance of some of the affected employees of the electricity wing who had got themselves impleaded as appellants the appeal was allowed on the short ground that the judgment of the learned single judge could not be sustained as it bad been rendered without all the necessary parties being before the court
The two staff members of the general wing who had origi nally filed CW No 307 of 1974 filed a Special Leave Peti tion SLP No 3597 of 1978 against the judgment of the Division Bench of the Delhi High Court in LPA No 78 of 1975
This Court dismissed the special leave petition in limine with an observation that it was hoped that the NDMC would comply with the direction of the Delhi High Court that it should evolve a formula satisfactory to all sections of the ministerial staff working in the different wings of the NDMC and if the revised scheme formulated by the NDMC was not satisfactory to any section of the staff it would be open to the affected party to seek appropriate reliefs from the High Court once again
819 The NDMC after giving opportunity to all sections of the employees to make their representations
passed a resolution on 276
1978 constituting the electricity wing with effect from 1578 or such subsequent date as may be fixed with 28 posts of pump drivers two posts of welders
3 posts of carpenters and one post of pump mechanic and 496 posts of ministerial staff and to give all of them scales of pay as per SS Committee Report
The NDMC further resolved as fol lows D 496 posts referred to above will be treated as ex cadre posts and will be filled on deputation basis on rotation the period of deputation in one spell being three years
These posts will be in SS Committee s scales and will carry the benefit of ex gratia of DESU pattern
E An equal number of posts may be created in general wing to form deputation reserve
The employees holding the ex cadre posts from the date of constitution of the wing will be entitled to have their pay fixed in the SS Committee scales or would draw deputation allowance as permissible under normal rules
During the period of deputation they will continue to remain as members of the unified cadre and will be eligible for promotion to higher posts on that basis
While the existing vacancies in the ex cadre categories will be filled straightaway on seniority cum option basis the existing incumbents will hold the ex cadre posts for a period of three years from the date of consti tution of the wing on deputation basis
On expiry of the three years one third of them with longest stay will be replaced every year by transfer from the general wing on the basis of seniority cum option
Such of the existing incumbents who become due for promotion to higher post will have to forego their deputa tion if they accept the promotion and will be transferred to general wing
 The above resolution was not to the liking of the ministeri al staff working in the electricity wing and hence one Shri R Chaudhary and 190 other staff members in the electricity wing filed a Writ Petition CW No 4072 of 78 under Article 32 of the Constitution before this Court but withdrew the same as the Court was not inclined to grant admission
Thereafter three petitions under Article 226 of the 820 Constitution viz CW Nos 1231
557  280 of 1978 came to be filed in the Delhi High Court
In CW No 1231 of 1979 some of the petitioners were Junior Engineers Civil some of the petitioners were Assistant Engineers Civil and some of the petitioners were Draftsman Civil
While the grievance of the ministerial staff among the petitioners was that they should be treated on par with the ministerial staff of the electricity wing in the matter of pay and allowances the grievance of the Junior and Assistant Engineers Civil and Draftsman Civil was that none of their posts was borne on the cadre of the electricity wing albeit on a transferable basis as there is no difference between the Civil Engineers and the Electrical Engineers as they attend to the civil engineering works in the electricity wing also and it is for that reason the civil engineers in DESU have been equated with the electrical engineers
In so far as CW No 280 of 1979 is concerned the peti tion pertained to the grant of ex gratia payment to only a section of the NDMC employees
Ever since 1972 the employ ees and their unions were demanding ex gratia payment on the ground
that since the employees of DESU were being paid ex gratia amount they should also be paid likewise
The Delhi Administration by its letter dated 1272 permitted the NDMC to make ex gratia payment to the employees of the electricity wing on the same lines as was being followed in DESU
Similarly on 721973 the Delhi Administration permitted the grant of ex gratia payment to the employees working in the Water Supply  Sewage Disposal wing of the NDMC also on the ground their counterparts in the Water Supply  Sewage Disposal undertaking in the MCD were being paid ex gratia amount
The ministerial staff in the general wing who were not granted the ex gratia payment raised a protest
Eventually the NDMC passed a resolution at its meeting held on 257
1977 that ex gratia payment be made to all employees of common categories such as clerks superin tendents etc
and that the payment be made subject to the conditions that the employees will refund the amount if the proposal was not approved by the Delhi Administration
Subsequently it turned out that the Delhi Administration did not approve the proposal of paying ex gratia amount to all the employees as the expenditure would cast a heavy burden on the finances of the NDMC and furthermore it will lead to similar demands being raised by employees in the other local bodies of Delhi
Consequently the NDMC called upon the staff of the general wing to refund the ad hoc payment of Rs300 given by way of advance towards ex gratia payment
To challenge the negation of ex gratia payment to them CW No 280 of 1978 was filed
821 The High Court rendered a common judgment covering all the three Writ Petitions
The High Court took the view that the contention of the ministerial staff that all of them
irrespective of the department of their work should be paid as per SS Committee Report failing which none should be paid at that rate was an extreme stand and cannot therefore be accepted
The High Court was of the opinion that the im pugned resolution of the NDMC was acceptable to the extent it reflected the desire of the NDMC to grant SS Committee scales of pay to as a large section of the staff as possible and to that extent the resolution was a beneficial measure for the ministerial staff
The High Court also held that since the NDMC wanted to equate the electricity wing with the DESU it is but proper that only those members of the ministerial staff who were prepared to work in the electric ity wing can be given the SS Committee pay scales and not the others who preferred to remain in the general wing itself
However in so far as the decision of the NDMC to introduce a system of deputation on rotational basis to the electricity wing is concerned the High Court was of the view that the proposal may work hardship to the ministerial staff both ways ie in seniority being overlooked at the time of the deputation posting and secondly in the emolu ments getting reduced after the period of deputation was over and as such a more fair and equitable formula in ac cordance with service jurisprudence should be evolved
In accordance with that view the High Court evolved the fol lowing formula to be adopted by the NDMC We therefore feel that in accordance with the equality principle the proper approach would be that SSC scale will be given amongst the ministerial staff only to those persons a who would opt to work in the electricity department
b it would be given strictly in accordance with the seniority ie to say the option will first be asked from the senior persons and if they are agreeable to work in the electricity wing they will be posted there and be eligible to get the higher SSC scale
If and when any vacancy arises either because of promotion or retirement or any other eventual ity the post will be filled up on the same principle of seniority cum option
Thus a unified principle and rule will apply to all the ministerial staff namely that the senior most person working in the electricity cell will be eligible to get the SSC scale
No question of discrimination will thus arise because the electricity cell will be automati cally manned by the senior most of the minis terial staff
Thus no 822 ministerial staff is discriminated against because each would be eligible in his own turn of seniority
This would really amount to as if a separate department of the electricity wing has been constituted The High Court while therefore upholding the order of the NDMC modified the placement of the ex cadre posts in the over all set up and also suggested the manner in which the posts should be filled up viz on the basis of seniority cum option
Thereby the High Court has done away with the rotational system every three years and further directed that since the higher scale of pay was linked up with the service rendered in the electricity wing the SSC scales should be paid to all those who had worked in the electrici ty wing during the period subsequent to June 75 till 30582 that such payment will not amount to discriminatory payment and that after 30582 the postings should be made in accordance with the seniority cum option formula
In so far as the engineers Civil and draftsman Civil are concerned the High Court declined to sustain their grievance
The High Court noticed that the Junior Engineers Civil have no common seniority with the electrical engi neers in the electricity wing that the posts are not inter changeable and that they cannot draw comparison from the employment pattern of engineers in DESU because the DESU was a separate and independent entity unlike the electricity wing of the NDMC that the nature of duties performed by the electrical engineers and civil engineers was different and for all these reasons the High Court held that the civil engineers cannot seek parity with the electrical engineers in the electricity wing in the matter of pay scales
The last question to be dealt with by the High Court pertained to the refusal to grant ex gratia payment to the staff of the general wing
The High Court saw justification in the payment of ex gratia payments to the employees in the electricity wing and the water supply and sewage disposal wing alone because of the nature of their duties and because of the precedent afforded by the MCD in granting such pay ment to the staff of the DESU and the Water Supply and Sewage Disposal Department
However the High Court took into consideration the long delay that had occurred and the hardship that would result to the employees of the general wing by complying with the order of refund and therefore directed the NDMC to treat the payment of Rs300 as one time special ad hoc payment not serving as a precedent and refrain from recovering the said amount
823 It is in this situation the appeals and petitions have come to be filed
CA No 2969 of 1973 has been filed by the members of minisiterial staff in the general wing to contend that instead of restricting the payment of SS Committee pay scales to the 496 ex cadre posts in the electricity wing and directing the NDMC to fill up those posts on the basis of seniority cure option the High Court should have directed the NDMC to give the SS Committee pay scales to all the members of the ministerial staff
Likewise the appellants would contend that the High Court should have directed the NDMC to pay them also ex gratia payment and should not have directed the NDMC to treat the ad hoe payment as one time special ad hoc payment and refrain from recovering the said amount
The NDMC in turn has filed two appeals CA No 2971 of 1983 and CA No 2970 of 1983
The former appeal has been filed against that part of the judgment relating to CW 1231 of 1979 wherein the High Court had directed payment at SS Committee s scales for the period June 1975 to May 1982 and also directed ministerial posts in the electricity wing to be filled up on seniority cum option basis instead of a three years deputation basis on rotational system
Likewise the direction of the High Court to give up the proceedings for recovery of the ad hoc payment towards ex gratia payment is also impugned in the appeal
Civil Appeal No 2970 Of 1983 is directed against that portion of the judgment relat ing to CW 557 of 1979 which has been filed by the non tech nical staff of the electricity wing praying for payment of arrears of pay for the total period subsequent to the sanc tion
CA No 6074 of 1983 has been filed by the Assistant Engineers Civil  Junior Engineers Civil to contend that the High Court should have sustained their claim for parity with the electrical engineers in the electricity wing and directed the NDMC to pay them also at the SS Committee pay scales and also to give them ex gratia payment as in the case of all the persons employed in the electricity wing
SLP NO
11270 of 1982 has been filed by some of the staff members in the general wing to contend that since the NDMC constituted an integrated unit with common fund common budget etc the High Court ought not to have sustained the payment of exgratia amount to only those persons working in the electricity wing and should have made the payment ap plicable for all or to none
As common questions are raised in this petition special leave is granted and the appeal shall be assigned a number
WP NO
9256 of 1983 has been filed by the Assistant  Junior Engineers Civil to contend that there cannot be any discrimination between Civil Engi neers and Electrical Engineers and as such they are as much entitled as the electrical engineers to be paid according to SS Committee pay scales and also for payment of ex gratia amount
824 We will now take up for consideration the merit of the contentions of the parties in the appeals and petitions
As we propose to deal with the several contentions of the parties in the course of our discussion in the judgment we do not think it necessary to set out the contentions of the parties separately
We will first take up for consideration the case of the appellants in CA No 2969 of 1983 viz the ministerial staff in the general wing of the NDMC
Mr Mukhoty learned counsel for the appellants urged before us that the electricity wing of the NDMC is not a distinct and independent unit entitled to have its own scales of pay and secondly the ministerial staff of the NDMC belong to a unified cadre and the staff members are liable to transfer from one branch of the NDMC to another and as such the NDMC cannot create a cadre within a cadre and fix different scales of pay for those in the carved out cadre
It was further urged by him that the nature of the duties performed by the ministerial staff in all the three wings of the NDMC is more or less similar if not identical and hence the well established rule of equal pay for equal work should govern the staff members
In support of his argument the learned counsel relied on the decisions of this Court in Randhir Singh vs Union of India   Dhirendra Chamoli vs State of UP and P Rarnachandra Iyer vs Union of India  Controverting the arguments of Mr Mukhoty Mr Misra learned counsel for the NDMC and Mr Ramamurthy learned counsel for the non technical staff working in the electri cal wing argued that the Government or any State within the meaning of Article 12 of the Constitution has a right under law to create new departments or new cadres with different scales of pay and hence the appellants
cannot impugn the action of the NDMC in treating the ministerial staff in the electrical wing differently and giving them pay scales as per SS Committee Report
In support of their arguments the learned counsel placed reliance on the decisions in Reserve Bank of India vs NC Paliwal   Reserve Bank of India vs CN Sahasranaman 1986 Suppl SCC 143
On a consideration of the matter we find the grievance of the ministerial staff of the general wing to be well founded
Admittedly the ministerial staff in the NDMC constitute a unified cadre
The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency
They are gov erned by a common seniority list
The ministerial posts in the three 825 wings of the NDMC viz the general wing the electricity wing and the water works wing are interchangeable posts and the postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifica tions
Therefore it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing either due to force of circumstances or due to voluntary preferment he stands on a better or higher footingor in a more advantageous position than his counter parts in the general wing
It is not the case of the respondents that the ministerial staff in the electricity wing perform more onerous or more exacting duties than the ministerial staff in the general wing
It therefore follows that all sections of the ministerial staff should be treated alike and all of them held entitled to the same scales of pay for the work of equal nature done by them
This Court has held in Randhir Singh s case that the mere fact that persons belong to different departments of the Government cannot by itself be a sufficient circumstance to justify different scales of pay and that where all things are equal that is where all 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
 In Dhirendra Chamoli s case the principle was reiterated and it was held that when the persons engaged by the Nehru Yuvak kendras performed the same duties as those performed by class IV employees appointed on regular basis against sanctioned posts it is difficult to understand how the Central Govern ment can deny to those employees the same salaries and conditions of service as class IV employees regularly ap pointed against sanctioned posts
To the same effect is the decision rendered in P Ramachandra Iyer s case which relat ed to discriminatory treatment being meted out to three Professors employed by the Indian Council of Agriculture Research
It is relevant at this juncture to scrutinise the reason which impelled the NDMC to pass the resolution in 1973 for giving the SS Commitee pay scales to the staff of the elec tricity wing alone
The only reason which prompted the NDMC to pass the resolution was that since DESU had implemented the SS Committee pay scales for its technical and non tech nical staff the NDMC should also follow suit in so far as its electricity wing is concerned
In doing so the NDMC had failed to bear in mind several distinguishing features between its set up and the set up of the DESU and its staff pattern and the staff pattern of DESU
The NDMC as already stated is governed by the Punjab Municipal Act while DESU is governed by the Delhi Municipal 826 Corporation Act 1957
The set up of the NDMC is that of an integrated unit comprising all the three wings while the set up under the Municipal Corporation Act of the MCD is that its three wings have to function as distinct and independent units
Such being the case the DESU is a separate and independent unit of MCD and constitutes an independent body
The DESU has its own budget and consequently it has freedom of action without reference to the other units
In contrast the NDMC s revenues is the income derived from all the three wings of it and the expenses are governed by a common budg et
Having regard to all these factors there is no room whatever for treating the electricity wing of the NDMC on part with the DESU and adopting the pattern of pay scales implemented by DESU
Apart from the difference in the set up it has also to be borne in mind that the ministerial staff in the NDMC are comprised in a unified cadre and the posts in the three wings are transferable and interchange able which is not so in the case of the staff of the DESU
If regard is had to all these factors the decision taken up the NDMC originally to place the non technical staff in the electricity wing on a higher footing and give them alone the SS Committee pay scales cannot be legally sustained
The action of the NDMC clearly suffered from the vice of arbi trariness and discrimination
That takes us to the validity of the further resolutions passed by the NDMC
When it was directed by the High Court to reconsider the matter in the light of the grievances expressed by the staff of the general wing the NDMC decided to make 496 posts in the electricity wing ex cadre posts and fill up those posts on deputation basis combined with a rotational system to be enforced once in every three years
By the revised resolution fair distribution of higher pay benefits was sought to be given to all the ministerial staff but nevertheless the vice of discrimination as be tween the staff of the electricity wing and the staff of the general wing continued to persist
The resolution only sought to provide all the members of the staff the benefit of the higher scales of pay for a period of three years at some point of time in their service provided they opted to serve in the electricity wing but it did not provide an answer for the criticism that there was no justification to treat the ministerial staff in the electricity wing on a higher footing than the rest of the staff and give them a higher scale of pay
Secondly the proposal would perpetuate the imbalance in the pay scales between different sections of the staff working in the three wings of the NDMC
Third ly the system of deputation would lead to a long period of wait for large sections of the staff before getting postings in the electricity wing on deputation basis
Fourthly the staff members would have to 827 forego the higher scales of pay and come back to the lesser scales when the period of deputation was over
Lastly the insistence on the staff members being entitled to deputation service in the electricity wing only if they exercised their option to work in that wing introduces an element of compul sion amont the members comprised in a unified cadre
These factors vitiated the revised proposal of the NDMC to make 496 posts as ex cadre posts and to fill them up on deputa tion basis by adopting a rotational cum option system
The High Court realised in some measure the vitiating features present in the revised scheme evolved by the NDMC
However instead of deprecating the scheme in its entirety the High Court has tried to formulate a scheme of its own
The High Court has taken the view that the 496 posts ex caderised in the electricity wing can be treated as special or senior posts which can be filled up on the basis of seniority cum option
The High Court apart from laying itself open to the criticism that it had gone beyond its powers in formulating a new scheme has failed to provide for equal benefits for all the members of the ministerial staff
If the electricity wing is to be filled up on the basis of seniority cum option those who had served earlier in the electricity wing would get a distinct advantage over the rest of the ministerial staff including the senior members of the matter of higher pay scales
Besides the seniority cum option system would give greater benefit to some and lesser benefit to some depending upon their age etc
Moreover the insertion of the option clause would introduce an element of compulsion and make it appear that the staff working in the electricity wing perform more onerous and more skilled duties and hence they stand on a higher footing
It would also lead to packing all the senior members of the staff in the electricity wing and denuding the other two wings of the services of the senior ministeri al staff
For all these reasons we find the scheme formulat ed by the High Court also cannot be sustained or accepted
The NDMC itself had fully realised at one point of time that its original resolution was not fair to all the members of the ministerial staff and hence it reconsidered the matter and resolved that the benefit of higher pay should either be given to all the staff or to none and as its finances did not permit the former option it was obliged to adopt the latter option and hence all the staff members would be uniformly paid at pay scales recommended by the Third Pay Commission
The NDMC was however forced by the Delhi Municipal Administration to treat the electricity wing as a different unit and to restrict the grant of higher pay scales only to that unit
In as much as the ground put 828 forward by the NDMC to discriminate between the ministerial staff in the general wing and the electricity wing is lack of funds and not on the ground of any distinction between the two wings the NDMC has no legal ground to project in justification of its action in making the posts in the electricity wing as ex cadre posts and giving the benefit of SS Committee pay scales only to persons serving in those posts
We are therefore of the view that the appellants in CA No 2969 of 1983 are entitled to succeed in their appeal
We will deal with the manner in which they should be given relief after considering the other appeals and petitions
Our next concern will be to deal with CA No 6074 of 1983 and WP No 9266 of 1983 which have been filed by the Junior Engineers Civil and Assistant Engineers Civil
Their grievance is that though they are on par with the Electrical Engineers except that the nature of their techni cal services differ their services are treated as inferior or as less skillful and they are deprived the benefit of SS Committee pay scales
They would contend that the civil engineering works designed and executed by them constitute an integral part of the work of the electrical wing and hence they cannot be discriminated in the matter of fixation of their scales of pay
The last contention is that since the NDMC has followed the DESU pattern of scales of pay the Civil Engineers are also entitled to the SS Committee pay scales because the DESU pays its civil engineers according ly
Dr Chitale appearing for the Civil Engineers strenuous ly argued that since the Civil Engineers have been equated with the Electrical Engineers by DESU the NDMC also must give parity of treatment for all the Civil Engineers and give them the benefit of the higher scales of pay
We do not feel persuaded to accept the contention of Dr Chitale
The case of the Civil Engineers does not stand on the same footing as that of the ministerial staff
This is because of several factors adverted to below
As has been pointed out by the High Court the Civil Engineering department is a separate and self contained one and the civil engineers are transferred within the civil engineering unit itself ie from one division to another by the Chief Engineer Civil
The Civil Engineers posted in the water works division are not paid according to the SS Committee pay scales
The Junior Engineers Civil do not have any common seniority with the electrical engineers and the posts are not inter transferable
All the engineers in which ever wing or department they are posted are paid according to the pay scales recommended by the Third Pay Commission
There is no discrimination in payment of salary as between them
Merely because some of the Civil Engineers 829 are assigned to do civil engineering works in the electrici ty wing they cannot be heard to say that they are not dif ferent from the electrical engineers and that they should be paid higher scales of pay
In the matter of promotions etc
they are governed by the common seniority list maintained for Civil Engineers
As such their posting to the electrici ty wing cannot make them a separate class by themselves
It is of no avail to the Civil Engineers to compare themselves with the Civil Engineers working in DESU because DESU is a separate and distinct unit and all the engineers working therein constitute a single unit
Unlike in the case of the ministerial staff there is no disparity of scales of pay between Civil Engineers working in the electricity wing and the Civil Engineers working in the other wings
Such being the case the appellants and petitioners herein have no basis to contend that they have been discriminated in the matter of fixation of pay scales
We are therefore of the view that CA No 6074 of 1983 and WP No 9266 of 1983 should fail
We are lastly left with the controversy regarding the payment of ex gratia amount by the NDMC only to those em ployees who are working in the electricity wing and the water works wing
We have already set out the history as to how ex gratia payment was sanctioned to the staff members of the electricity wing and then the water works wing and why it was not extended to the general wing etc
By way of an adhoc arrangement the NDMC had given an advance of Rs300 for the period ending with 313
1976 subject to the approv al of the Delhi Administration
As the Delhi Administration declined to give its approval the NDMC called upon the concerned staff to refund the ad hoc payment of Rs300 in fifteen monthly instalments
To challenge the denial of ex gratia payment to them the affected staff had filed CW No 2807 of 1979
The High Court it may be remembered had sustained the stand of the NDMC but nevertheless directed the NDMC to treat the adhoc payment as a special payment and to desist from recovering it
We are unable to appreciate the reasoning of the High Court and sustain its conclusion on this aspect of the matter
The High Court has failed to see that no rational or acceptable reason is put forward for justifying the ex gratia payment only to the ministerial staff working in the electricity wing and the water works wing and denying the same to the staff working in the general wing
The only reason given is that the payment of ex gratia amount is patterned on the lines of the DESU and the Water Supply and Sewage Disposal Undertaking of the MCD
830 The pattern of payment adopted by the MCD cannot have any binding force on the NDMC because the three units of MCD are different and distinct entities whereas the three wings of the NDMC are interdependent wings of an integrated Municipal Committee
Therefore in the absence of justifiable reasons of a compulsive nature the payments whether as salary or as ex gratia amount have to be on the same and equal basis and not differently for the different wings of the NDMC
In fact what all we have said regarding the payment of uniform pay at the scales recommended by SS Committee would squarely apply to the payment of ex gratia amount also
Hence CA No 2969 of 1983 and SLP No 11270 of 1982 SCA No 1688 of 1987 deserve to succeed
In the light of our conclusion the two appeals CA NO 2971 and 2970 of 1983 filed by the NDMC have to fail in so far as the main issues are concerned
Mr Misra learned counsel for the NDMC contended before us that it was open to the NDMC to constitute different cadres among its employees as laid down in Paliwal s case and furthermore the grant of SS Committee pay scales and ex gratia payments to all the employees would seriously affect the finances of the NDMC
The decisions in Reserve Bank of India vs C Paliwal supra  Reserve Bank of India vs CN Sahasranaman supra relied on by Mr Misra are of no assistance in this case because what we are concerned is whether diferent pay scales and allowances can be given to a section of the staff when they belong to a unified cadre and are governed by common re cruitment policy common seniority list and common transfer policy
It was urged by the learned counsel that the High Court was not justified in directing payment at the SS Committee pay scales for the employees of the electricity wing from June 1975 to May 1982 as that would result in the NDMC paying Rs5198079 and in addition the payment of the arrears calculated on the difference in pay with reference to the SS Committee pay scales for the period between 141972 to 3091973 would cost another Rs730062 thus in all casting a financial burden of more than Rs50 lakhs on the NDMC
In the view we propose taking of the matter in the light of our conclusions this grievance does not call for discussion
Mr Ramamurthy learned counsel appearing for the mem bers of the staff working in the electricity wing voiced forth the grievance of those employees
The straight and simple argument of the learned counsel was that in the controversy between the ministerial staff of the general wing on the one hand and the NDMC on the other the staff of the electricity wing who had been granted revised pay scales at the SS 831 Committee rates have not been paid their due share of the salary and that they are entitled to be paid salary at the revised rate from 141972 failing which at least from 1982 onwards
The argument though appealing by itself cannot be accepted because then it would mean that the staff members of the electricity wing would be scoring an advantage over their fellow employees in the general wing merely because they were by accident or by compulsion working in the elec tricity wing at the relevant time the impugned resolutions came to be passed by the NDMC
In the result we hold that all the ministerial staff working in the NDMC are entitled to get pay scales as per SS Committee Report and likewise all of them are entitled to be given ex gratia payment
The grant of SS Committee pay scales to only the staff working in the electricity wing or the grant of ex gratia payment to only the staff working in the electricity wing and the water works wing cannot be legally sustained as it suffers from the vice of discrimina tion
As a consequence of these findings it follows that there should be uniformity not only in the payment of the SS Committee pay scales and the ex gratia amount to the staff working in all the wings or departments of the NDMC but the payment should also be made from a date common to all
However having regard to the long lapse of time and the financial implications involved in the matter it will not be fair and proper to direct the NDMC to pay all the members of the staff at SS Committee rates from 1472 to 30973 and from June 1975 to May 1982
But at the same time we cannot also totally deprive the staff particularly those who have been looking forward to receiving higher scales of pay granted by the NDMC and the benefit of the ex gratia pay ments
We therefore direct that the sum of Rs59 10160 and the agreed amount of ex gratia payment be equally dis tributed among a11 the members of the staff with such adjustments by deductions as may be required to be made in the case of persons who have received payment in excess of their share under the above said formula
In so far as payment of uniform salary to all the ministerial staff as per SS Committee pay scales and payment of ex gratia amount is concerned the NDMC will give effect to our judgment with effect from 1st June 1982 since the High Court s direction for payment extends upto the end of May 1982 and in respect of which payment we have directed the amount involved to be distributed equally among all the ministerial staff and not confine it to the ministerial staff of the electricity wing alone
Taking into consideration the financial commitment involved for the NDMC it is permitted to pay the difference in the scales of pay and ex gratia amount between the period 1682 to 31787 in three 832 equated instalments within a period of 15 months from the date of our judgment
The Delhi Administration will give the necessary sanction to the NDMC for disbursement of funds and payment of arrears and future pay in accordance with our judgment
In the result CA No 2969 of 1983 and SLP No 1127 of 1982 numbered as CA No 1688
of 1987 will stand allowed to the extent relief is given
CA Nos
2970 of 1983 and 2971 of 1983 filed by the NDMC and CA No 6074 of 1983 and WP No 9266 of 1983 filed by the engineers civil will stand dismissed
There will be no order as to costs in all the appeals and the writ petition


Summary:
In the Union Territory of Delhi there are two main civic bodies viz the New Delhi Municipal Committee and the Delhi Municipal Corporation
The NDMC was constituted under the Punjab Municipal Act 1913 to discharge all civic functions including supply of water and electricity in the area fall ing within its jurisdiction
The Delhi Municipal Corporation was constituted in pursuance of the Delhi Municipal Corpora tion Act 1957
The NDMC forming a compact unit had divided its civic work into various departments
Besides technical staff it also engaged nontechnical staff such as Municipal staff clerks etc
The non technical staff constituted one unified cadre liable to transfer from one department to another with common seniority
The set up of the MCD was however different consisting of three separate and independent wings viz the electrici ty the general and the water sewage and disposal wings
The electricity wing was designated as the Delhi Electricity Supply Undertaking and its employees were governed by a separate cadre and seniority list Similarly the general wing performing other general civic duties and functions and the third wing concerning with distribution of water and disposal of sewage etc
To satisfy the demands of the employees of the MCD NDMC etc
the Government accepted the recommendations of the Third Pay Commission
The New Delhi Municipal Committee as well as the general wing of the Municipal Corporation Delhi accepted the pay scales recommended by the Third Pay Commis sion
However the tech 809 nical staff of Delhi Electric Supply Undertaking were not satisfied and claimed higher scales of pay
The Government therefore constituted a Committee known as the Shiv Shankar Committee to go into the question of revision of pay scales etc
of the technical staff of the DESU
The Committee submitted its report in 1973
Subsequently the DESU agreed to revise the pay scales of the non technical staff also to the level recommended by the SS Committee
The New Delhi Municipal Committee by its Resolution dated 191073 decided to give the benefit of the revised scales to the technical and ministerial staff working in its electricity wing as in its view such staff were performing same or similar functions and duties performed by the staff of DESU and hence parity should be maintained and by Reso lution dated 711974 it decided to give the benefit with effect from 1472
Two of the employees of the general wing filed a writ petition before the High Court for quashing the Resolution dated 711974 which sought to implement the earlier Resolu tion of 19101973
The HighCourt held that the Resolution was discriminatory in nature and restrained the implementa tion of the Resolution till the NDMC considered afresh the question of revision of pay scales for all sections of the ministerial staff after giving an opportunity to them
In compliance with the above directions the NDMC passed a revised Resolution dated 2561975 treating all the non technical staff as equal and granting uniform pay scales at the rates recommended by the Third Pay Commission and not at different rates for different wings
This Resolution was again challenged by some of the affected members of the electricity wing before the High Court which disposed it of on the assurance given by the NDMC that the whole position would be reviewed after giving all the parties including the ministerial staff of the electricity wing due notice of the matter
The Letters Patent Appeal originally filed by the NDMC and in which some of the affected employees of the electric ity wing had got themselves impleaded as appellants was allowed and the judgment of the Single Judge was set aside as it had been rendered without all the necessary parties being before the Court
The Special Leave Petition filed in the Supreme Court by two staff members of the general wing was dismissed in limine
The NDMC after giving opportunity to all sections of the emp 810 loyees to make their representation passed a Resolution on 27678 constituting the electricity wing wef 1578 composed of pump drivers welders carpenters mechanics and 496 posts of ministerial staff carrying scales of pay as per the SS Committee report and benefit of exgratia on DESU pattern and treated these as ex cadre posts and to be filled on deputation basis on rotation for a period of three years in one spell
Three writ petitions were filed in the High Court con tending a that the ministerial staff should be treated on par with their counterparts in the electricity wing in the matter of pay and allowances b that as there was no difference between the civil and electrical engineers civil engineers should be equated with the electrical engineers on DESU pattern and c that since the employees of DESU were being paid ex gratia amount the staff in the general wing should also be paid likewise
The High Court while upholding the order of the NDMC modified the placement of the ex cadre posts in the overall set up
It evolved a Scheme according to which the SS Committee scales were to be given only to those who opted to work in the electricity department and the posts were to be filled on the basis of seniority cum option
It further directed that since higher scales of pay was linked with the service rendered in the electricity wing SS Committee scales should be paid to all those who had worked in the electricity wing during the period subsequent to June 1975 till 30th May 1982 that such payment would not amount to discriminatory payment and that after the 30th May 1982 the postings should be done in accordance with senioritycum option formula
It also held that the civil engineers could not seek parity with electrical engineers in the electricity wing in the matter of pay scales as the junior engineers Civil had no common seniority with the electrical engi neers in the electricity wing that the posts were not interchangeable and that they could not draw comparison with the employment pattern of DESU because it was a separate and independent entity unlike the electricity wing of the NDMC and that the nature of the duties performed by the electri cal engineers and civil engineers was different
Upholding the refusal of the NDMC to grant ex gratia payment to the staff of the general wing it directed the NDMC to treat the amount already paid as one time special ad hoc payment not serving as a precedent 811 In the appeals before this Court it was contended on behalf of the ministerial staff in the general wing that the electricity wing was not a distinct and independent unit entitled to have its own scales of pay that the ministerial staff of the NDMC belonged to a unified cadre and the staff members were liable to transfer from one branch to another and as such the NDMC could not create a cadre within a cadre and fix a different scale of pay for those in the carved out cadre that the nature of duties performed by the ministerial staff in all the three units was more or less similar if not identical and hence the well established rule of equal pay for equal work should govern the staff members that instead of restricting the payment of SS Committee pay scales to the 496 ex cadre posts in the elec tricity wing and directing the NDMC to fill up those posts on the basis of seniority cum option the High Court should have directed the NDMC to give the SS Committee pay scales to all the members of the ministerial staff and also pay ex gratia payment and should not have directed the NDMC to treat the adhoc payment as one time special adhoc payment and refrain from recovering the said amount
The NDMC in turn
filed two appeals against the High Court judgment directing the payment at SS Committee scales for the period from June 1975 to May 1982 and fill ing up the ministerial posts in the electricity wing on seniority cum option basis instead of a three years deputa tion basis on rotational system and payment of arrears of pay etc
and for giving up the proceedings for recovery of the adhoc payment towards ex gratia payment and contending that the Government or any State within the meaning of Article 12 of the Constitution had a right under law to create new departments or new cadres with different scales of pay and hence the appellants could not impugn the action of the NDMC in treating the ministerial staff in the elec trical wing differently and giving them pay scales as per SS Committee Report
On behalf of some of the staff members in the general wing it was contended that since the NDMC constituted an integrated unit with common fund common budget etc the High Court ought not to have sustained the payment of ex gratia amount to only those persons working in the electric ity wing and water works wing and should have made the payment applicable to all or to none
In the writ petition and appeal filed on behalf of the Assistant and Junior Engineers Civil it was contended that there could not be any discrimination between civil engineers and electrical engineers and since the NDMC fol lowed the pattern of scales of pay adopted by DESU 812 which paid the Civil Engineers according to SS Committee pay scales they were as much entitled as the electrical engineers to be paid according to the SS Committee pay scales and also for payment of ex gratia amount
Allowing the appeals of the employees in the general wing and dismissing the appeals and WP of NDMC and the engineers civil this Court HELD 11 All sections of the ministerial staff should be treated alike and all of them should be entitled to the same scales of pay for the work of equal nature done by them
825C 12 Merely because a member of the ministerial staff had been given a posting in the electricity wing either due to force of circumstances or due to voluntary preferment he cannot stand on a better or higher footing or in a more advantageous position than his counterparts in the general wing
The ministerial staff in the NDMC constitute a unified cadre with a common recruitment policy a common recruitment agency a common seniority list and the posts in the three wings are inter changeable and postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualification
825B 824H 825A 13 The only reason which prompted the NDMC to pass the resolution was that since DESU had implemented the SS Committee pay scales for its technical and non technical staff the NDMC should also follow suit in so far as its electricity wing is concerned
In doing so the NDMC had failed to bear in mind several distinguishing features between its set up and the set up of the DESU and its staff pattern and the staff pattern of DESU
825G The NDMC is governed by the Punjab Municipal Act while the DESU is governed by the Delhi Municipal Corporation Act 1957
The set up of the NDMC is that of an integrated unit comprising all the three wings while the set up under the Municipal Corporation Act of the MCD is that its three wings have to function as distinct and independent units
Such being the case the DESU is a separate and independent unit of MCD and constituted an independent body
The DESU has its own budget and consequently it has freedom without reference to the other units
In contrast the NDMC s revenue is the income derived from all the three wings of it and the ex penses are governed by a common 813 budget
Apart from the diference in the set up the ministe rial staff in the NDMC are comprised in a unified cadre and the posts in the three wings are transferable and inter changeable which is not so in the case of the staff of the DESU
825H 826A 14 There is no room whatsoever for treating the elec tricity wing of the NDMC on par with the DESU and adopting the pattern of pay scales implemented by DESU and the deci sion taken by the NDMC originally to place the non technical staff in the electricity wing on a higher footing and give them alone the SS Committee pay scales cannot be legally sustained
The action of the NDMC clearly suffered from the vice of arbitrariness and discrimination
826B D 21 The NDMC has no legal ground to project any justifi cation of its action in making the posts in the electricity wing as ex cadre posts and giving the benefit of SS Com mittee pay scales only to persons serving in those posts
828A 22 The resolution only sought to provide all the mem bers of the staff the benefit of the higher scales of pay for a period of three years at some point of time in their service provided they opted to serve in the electricity wing but it did not provide an answer for the criticism that there was no justification to treat the ministerial staff in the electricity wing on a higher footing than the rest of the staff and give them a higher scale of pay
826F G 23 The proposal would perpetuate the imbalance in the pay scales between the different sections of the staff working in the three wings of the NDMC
The system of depu tation would lead to a long period of wait for large sec tions of the staff before getting postings in the electrici ty wing on deputation basis
The staff members would have to forego the higher scales of pay and come back to the lesser scales when the period of deputation was over
The insist ence on the staff members being entitled to deputation service in the electricity wing only if they exercised their option to work in that wing introduces an element of compul sion among the members comprised in a unified cadre
These factors vitiate the revised propsoal of the NDMC to make 496 posts as ex cadre and to fill them up on deputation basis by adopting a rotational cum option system
826G H 827A B 3
The scheme formulated by the High Court cannot be sustained or accepted
The High Court apart from laying itself open to the criticism that it had gone beyond its power in formulating the scheme has 814 failed to provide for equal benefits for all the members of the ministerial staff
If the electricity wing is to be filled up on the basis of seniority cum option those who had served earlier in the electricity wing would get a distinct advantage over the rest of the ministerial staff including the senior members in the matter of higher pay scales
Besides the seniority cum option system would give grater benefit to some and lesser benefit to some depending upon their age etc
Moreover the insertion of the option clause would introduce an element of compulsion and make it appear that the staff working in the electricity wing per form more onerous and more skilled duties and hence they stand on a higher footing
It would also lead to packing all the senior members of the staff in the electricity wing and denuding the other two wings of the services of the senior ministerial staff
827C F 4
Merely because some of the Civil engineers are as signed to do civil engineers  work in the electricity wing it cannot be said that they are not different from the electrical engineers and that they should be paid higher scales of pay
In the matter of promotions etc they are governed by the common seniority list maintained for civil engineers and their posting to the electricity wing cannot make them a separate class by themselves
They cannot com pare themselves with the civil engineers working in DESU because that is a separate and distinct unit and all the engineers working therein constitute a single unit
There is no disparity of scales of pay between civil engineers work ing in the electricity wing and those working in the other wings
It cannot therefore be said that there is discrimi nation in the matter of pay scales
828H 829A C 5
The pattern of payment of ex gratia payment adopted by the MCD cannot have any binding force on the NDMC because the three units of the MCD are different and distinct enti ties whereas the three wings of the NDMC are inter dependent wings of the integrated Municipal Committee
830A 61 In the absence of justifiable reasons of compulsive nature the payments whether as salary or as ex gratia amounts have to be on the same and equal basis and not differently for the different wings
All the ministerial staff working in the NDMC are entitled to get pay scales as per SS Committee report and are also entitled to be given ex gratia payment likewise
The grant of SS Commitee pay scales to only the staff working in the electricity wing or the grant of ex gratia payment to only the staff working in the electricity wing and the water works wing cannot be legally sustained as it suffers from the vice of discrimina tion
830B 831C 815 62 There should be uniformity not only in payment of SS Committee pay scales and the ex gratia payment to the staff working in all the wings or departments of the NDMC but the payment should also be made from a date common to all
831D In so far as payment of uniform salary to all the ministerial staff as per SS Committee pay scales and payment of ex gratia payment is concerned the NDMC will give effect to this judgment with effect from 1st June 1982
The amount involved should be distributed equally amongst all the ministerial staff and not confined to the ministerial staff of the electricity wing alone
In view of the financial committment involved the NDMC is permitted to pay the difference in scales of pay and ex gratia amount between June 1 1982 to July 31 1987 in three equal instal ments within a period of 15 months 831F H Randhir Singh vs Union of India   Dhirendra Chamoli vs State of UP  P Ramachandra Iver vs Union of India   Reserve Bank of India vs
NC Paliwal  and Reserve Bank of India vs
CN Sahasranaman 1986 Suppl SCC 143 referred to