ivil Appeal No 764 of 1978
From the Judgment and Order dated 571974 of the Andhra Pradesh High Court in W A
No 71 of 1974
HS Guru Raja Rao section Markendeya Mrs Chitra Marken deya G Seshagiri and Kumari Usha Saraswat for the Appel lants
PA Choudhary and TVSN Chari for the Respondents
The Judgment of the Court was delivered by SINGH J
This appeal is directed against the judgment and order of a Division Bench of the High Court of Andhra Pradesh setting aside the order of a learned single Judge dismissing the appellant  writ petition made under Article 226 of the Constitution
The appellants are members of the Andhra Pradesh Engi neering Subordinate Service as supervisors in Category 1 of the Engineering Branch
The Engineering Branch category 1 includes officers namely Supervisors Overseers Head Draftsmen Civil Draftsmen Artists Draftsmen Tracers Blue Print Operators and Building Mistries
Supervisors are recruited by direct recruitment as well as by promotion from amongst the Overseers
The cadre of supervisors include degree holders in engineering and diploma or licence hold ers
Both perform the same duties and functions in the engineering branch
Promotion to the post of Assistant Engineer the next higher post is made from amongst the post of supervisors in accordance with the Andhra Pradesh Engi neering Service Rules 1967
Graduate Overseers are given preference in the ratio of promotion to the post of Assist ant Engineer inasmuch as the quota of promotion is four to one from amongst the graduate supervisors and non graduate supervisors
In addition to the disparity in the matter of promotion graduate supervisors and non graduate supervisors are granted different pay
427 On recruitment to the service of supervisors a graduate supervisor is granted higher starting salary than non gradu ate supervisors
Subsequently a lower pay scale was pre scribed for the non graduate supervisors
Aggrieved the non graduate supervisors filed two writ petitions in the High Court of Andhra Pradesh under Article 226 of the Con stitution challenging validity of discrimination in pre scribing two different scales of pay
The appellants con tended that diploma holder supervisors were entitled to the same scale of pay as prescribed for the graduate supervisors on the principle of equal pay for equal work as they consti tuted the same service and performed the same duties and functions as those performed by graduate supervisors
The State Government contested their case on the pleading that graduate supervisors and diploma supervisors always remained separate and they were never fused into one service
The two class of employees discharged the same functions and carried out similar duties but the State was justified in prescrib ing different pay scales for historical reasons and also on the basis of difference in the educational qualifications
Plea of discrimination against non graduate supervisors was denied
A learned Single Judge of the High Court Justice O Chinnappa Reddy as he then was by his judgment and order dated February 26 1974 held that the State practised invid ious discrimination without there being valid justification between the two categories of supervisors graduates and non graduates
The learned judge allowed both the writ petitions and issued mandamus to the State Government to accord the same scale of pay to the non graduate supervisors as prescribed for the graduate supervisors under the Govern ment Order dated June 13 1969
On appeals preferred by the State of Andhra Pradesh a Division Bench of the High Court set aside the judgment of the learned Single Judge and dismissed the writ petitions on the finding that the State practised no discrimination and the appellants were not entitled to relief on the principle of equal pay for equal work
Hence this appeal by special leave
This is the second round of litigation by the Diploma holder Supervisors
Earlier they had challenged the grant of higher quota of promotion for graduate Supervisors on the ground that when graduate and non graduate Supervisors belong to the same cadre and are eligible for promotion then giving preferential treatment to graduates amount to denial of equal opportunity to the non graduate Supervisors
This Court in Mohd Sujat Ali vs Union of India   rejected the challenge holding that two categories of Supervisors were never fused into one class and have throughout remained distinct and apart
The non graduate supervisors have again challenged the 428 disparity in the pay scale prescribed for the two class of supervisors
Since controversy in the present appeals centers round the pay of the Supervisors it is necessary to refer to the history of pay scales prescribed for the Supervisors
Prior to 1958 the scale of pay prescribed for Supervisors was Rs 100 5 1 250 but directly recruited graduate Supervisors were granted initial starting salary at Rs 150 on the date of their initial appointment while a diploma holder Supervisor was paid starting salary of Rs 100 only though the same pay scale was prescribed for both the degree holders and diploma holders
On his appointment a graduate supervisor Was designated as Junior Engineer while a non graduate continued to be designated as supervisor
In 1958 the scale of pay of Supervisors was revised to Rs 100 5 150 712 20010 300 but graduate Supervisors were continued to be granted higher starting salary at Rs 180 on the date of their initial appointment
Later the starting salary of graduate Supervisors was raised to Rs200 and their pay was fixed in the pay scale of Rs200 10 300
In 1961 the scale of pay of Supervisors was again revised according to which non graduate supervisors were granted pay scale of Rs 180 712 210 10280 15 400 while Junior Engineers graduate Supervisors were granted the scale of Rs250 15 400
Though different pay scales were provided for non graduate Supervi sors and graduate Supervisors but the maximum pay for both the categories was maintained at the same level irrespec tive of the Supervisor being a graduate or a non graduate
The State Government further revised the pay scale of both the categories of Supervisors by the Government Order No 173 dated 13th June 1969 according to which the scale of pay of non graduate Supervisors was revised to Rs200 12 320 16 400 while the scale for Junior Engineers Graduate Supervisors was revised to Rs300 20600
The revised pay scales made substantial difference in the matter of pay between the graduate supervisors and non graduate supervisors which gave rise to the disputes before the High Court
Mr HS Gururaja Rao learned counsel for the appel lants urged that non graduate supervisors and graduate supervisors constitute the same class as they belong to the same service and both the class of officers are fused into one as the two posts are interchangeable
The graduate supervisors are no doubt designated as Junior Engineers but the work and duties of both are the same and both set of officers are treated at part for every other purpose
Since the two categories of officers were fused into one the State denied equality by prescribing different scales of pay for the non graduate supervisors
Learned counsel further urged that even if the graduate 429 supervisors Junior Engineers and non graduate supervisors constitute two different categories but since they have been carrying out the same work and performing the same duties carrying the same responsibility without any dis tinction the doctrine of equal pay for equal work is fully applicable and on that basis the non graduate supervisors are also entitled to the same pay scales as prescribed for the graduate supervisors Junior Engineers
Learned counsel emphasised that for application of the principle of equal pay for equal work it is not necessary that the two class of officers must belong to one integrated service instead if the nature of duties and functions of the two posts are identical or similar the principle would apply
He referred to a number of decisions reference to which will be made at the appropriate stage
Shri PA Chaudhry learned counsel appearing for the respondent State seriously contested the correctness of the submissions made on behalf of the appel lants and urged that in view of the Constitution Bench decision of this Court in Mohammad Shujat Ali s case supra the appellants are not entitled to any relief
Since the Division Bench of the High Court rejected the appellants  claim for equal pay in view of the findings of a Constitution Bench of this Court in Mohammad Shujat Ali s case it is necessary to refer to that case in some detail
In Shujat Ali s case non graduate supervisors of Andhra Pradesh had challenged validity of the rule which gave preferential treatment to graduate supervisors Junior Engineers for promotion to the post of Assistant Engineer on the ground that it violated the equality clause enshrined under Articles 14 and 16 of the Constitution
In that con text the question arose whether the preferential treatment given to graduate supervisors was justified on any reasona ble classification or it was arbitrary and irrational
Bhagwati J speaking for the Constitution Bench after considering various decisions of this Court observed as under But where graduates and non graduates are both regarded as fit and therefore eligible for promotion it is difficult to see how consistently with the claim for equal opportu nity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non graduate in the matter of fixation of such quota
The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engi neer which according to the quota is re served for graduate Supervisors a non 430 graduate supervisors cannot be promoted to that vacancy even  if he is senior to all other graduate Supervisors and more suitable than they
His opportunity for promotion would be limited only to vacancies available for non graduate Supervisors
That would clearly amount to denial of equal opportunity to him
 The above observation would show that the Constitution Bench held that fixation of quota giving preference to graduate supervisors amounted to denial of equal opportunity to the non graduate supervisors
But after making the aforesaid observations the Constitution Bench considered the history of the graduate super visors and non graduate supervisors under the Andhra Pradesh Rules and thereupon it record ed findings that the graduate supervisors have always been treated as a distinct and separate class from non graduate supervisors both under the Hyderabad Rules as well as under the Andhra Pradesh Rules and they were never treated as equals
The Bench observed as under The pay scale of Junior Engineers was always different from that of non graduate supervi sors and for the purpose of promotion the two categories of supervisors were kept distinct and apart under the Andhra Rules even after the appointed day
The common gradation list of supervisors finally approved by the Govern ment of India also consisted of two parts one part relating to Junior Engineers and the other part relating to non graduate supervi sors
The two categories of supervisors were thus never fused into one class and no ques tion of unconstitutional discrimination could arise by reasons of differential treatment being given to them
 In view of the aforesaid findings of the Constitution Bench which relate to this very cadre of supervisors it is diffi cult to accept the appellants  contention that the graduate supervisors and non graduate supervisors were integrated into one class of service and that no differential treatment is permissible to the non graduate supervisors
The Consti tution Bench on elaborate discussion held that the equality clause under Articles 14 and 16 of the Constitution was not violated in the matter of promotion of graduate supervisors and non graduate supervisors as the graduate supervisors and non graduate supervisors constituted two different classes
The necessary consequence of the Constitution Bench findings are that the classification of Supervisors into two clas 431 ses on the basis of historical reasons is valid and it does not offend Article 14 or 16 of the Constitution
Once the classification is upheld it is difficult to hold that non graduate supervisors are entitled to the same pay scale as prescribed for graduate supervisors as equality in pay is permissible with equals and not with unequals
There is basic difference between the two class of supervisors as graduate supervisors hold degree in Engineering while non graduate supervisors are only Diploma and Licence holder and they have all along been treated differently on the basis of different in educational qualifications
In State of Mysore vs
P Narasingh Rao  the question arose whether two different pay scales could be prescribed for the employees working in the same service on the basis of educational qualification
In the State of Mysore tracers included matriculates and non matriculates
The government prescribed higher pay scale to matriculate tracers although the non matriculates and matriculates tracers both were performing the same duties and functions
The non matriculate tracers challenged the validity of different pay scales on the ground that it violated the guarantee of equality under Articles 14 and 16 of the Con stitution as there was no valid reason for making distinc tion
The High Court accepted their contention and allowed their petition holding that there was no valid reason for making distinction as both matriculate and non matriculate tracers were doing the same kind of work and the denial of different scale of pay was in violation of Articles 14 and 16 of the Constitution
On appeal by the State Government this Court set aside the order of the High Court on the finding that higher educational qualification is a relevant consideration for fixing different pay scales and the clas sification of two grades of tracers did not violate of Article 14 or 16 of the Constitution
The Constitution Bench observed as under The provisions of Article 14 or Article 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question
Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for public service as such
It is therefore not fight to say that in the appointment to the post of tracers the Govern ment ought to have taken into account only the technical proficiency of the candidates in the particular craft
It is open to the Government to consider also the general educational attainments of the candidates and to give preference to candidates who have a better 432 educational qualification besides technical proficiency of a tracer
 Classification in service rounded on the basis of educa tional and academic qualifications is now well recognised
It is open to the Administration to give preference to a class of employees on the basis of educational qualifica tions having regard to the nature of duties attached to the post for the purposes of achieving efficiency in public services
It is permissible to give preference to degree holders as was held by this Court in Union of India vs Dr Mrs SB Kohli  and State of Jammu  Kashmir vs Triloki Nath Khosa  Since clas sification on the basis of educational qualification is a valid consideration for discriminating in matters pertaining to promotion to the higher post there is no reason as to why the same principle is not be applicable for prescribing scales of pay
Having regard to the findings recorded by the Constitution Bench in Mohammad Shujat Ali s case that gradu ate supervisors and non graduate supervisors constitute two distinct class the non graduate supervisors cannot validly claim parity with the graduate supervisors regarding pay scales
The appellants grievance that they have been denied equality in violation of Article 14 or 16 of the Constitu tion is not sustainable
Learned counsel for the appellants urged that even if the appellants  grievance regarding violation of Articles 14 and 16 of the Constitution is not sustainable the appel lants are entitled to the same scale of pay as granted to the graduate supervisors on the principle of equal pay for equal work  enshrined under Article 39d of the Constitu tion
He placed reliance on the decision of this Court in Randhir Singh vs Union of India  Ors   P Savita vs Union of India 1985 Supp
SCR 101 Dhirendra Chamoli  Anr
vs State of UP  Surinder Singh  Anr
vs Engineer in Chief CPWD  Ors
  Bhagwan Dass vs State of Haryana 1987 4 SCC 634 and Jaipal vs State of Haryana 1988 3 SCC 354
In view of these authorities the learned counsel contended there is no justification to disregard the doctrine of equal pay for equal work  as graduate supervisors and the non graduate supervisors both have been doing the same work with the same responsibilities without there being any difference in the duties and functions of the two categories of officers
Article 39d contained in part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women
Provisions contained in the Chapter on 433 Directive Principles of State Policy cannot be enforced by courts although the principles contained therein are funda mental in nature for the governance of our country
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 Directive Principles to ensure that in doing justice the principles contained there in are maintained
The purpose of Article 39d is to fix certain social and economic goals for avoiding any discrimi nation amongst the citizens doing similar work in matters relating to pay
If the court finds that discrimination is practised amongst two set of employees similarly situated in matters relating to pay the court must strike down discrim ination and direct the State to adhere to the doctrine of equal pay for equal work  as enshrined under Article 39d of the Constitution
Fundamental rights and the Directive Principles constitute conscience of the Constitution
The Constitution 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 with out faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution see Keshavanand Bharti vs State of Kerala 1973 4 SCC 225
In Randhir Singh s case supra and later in Dhirendra Chamoli s case supra Surinder Singh s case supra Bhagwan Dass s case supra
Jaipal s case supra and P Sativa s case supra this Court implemented the principle of equal pay for equal work 
The Court granted relief on the principle of equal pay on the basis of same or similar work performed by two class of employees under the same employer even though the two class of employees did not constitute the same service
But in all the aforesaid cases relief was granted only after it was found that discrimina tion was practised in giving different scales of pay in violation of the equality clause enshrined under Article 14 and 16 of the Constitution
The principle of equal pay for equal work was enforced on the premise that discrimination was practised between the two set of employees performing the same duties and functions without there being any rational classification
The principle of equal pay for equal work  is not abstract one it is open to the State to prescribe different scale of pay for different cadres having regard to nature duties responsibilities and educational qualifications
Different grades are laid down in service with varying 434 qualification for entry into particular grade
Higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres
The application of doctrine arises where employees are equal in every respect in educational qualifications duties functions and measure of responsi bilities and yet they are denied equality in pay
If the classification for prescribing different scales of pay is rounded on reasonable nexus the principle will not apply
But if the classification is rounded on unreal and unreason able basis it would violate Articles 14 and 16 of the Con stitution and the principle of equal pay for equal work must have its way
In the decisions reference to which have been made by the learned counsel for the appellants this Court granted relief after recording findings that the aggrieved employees were discriminated in violation of the equality clause under Articles 14 and 16 of the Constitu tion without there being any rationale for the classifica tion
In a number of decisions of this Court the claim for equal pay for equal work has been negatived on the ground that the different pay scales prescribed for persons doing similar or same work is permissible on the basis of classi fication rounded on the measure of responsibilities educa tional qualifications experience and other allied matters
In Federation of All India Customs and Central Excise Ste nographers Recognised vs Union of India   Justice Sabyasachi Mukharji said SCC p 100 para 7
There may be qualitative differences as regards reliability and responsibility
Func tions may be the same but the responsibilities make a difference
One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service
So long as such value judgment is made bona fide reasonably on an intelligible criteria which has a rational nexus with the object of differentiation such differentia tion will not amount to discrimination
It is important to emphasise that equal pay for equal work is a concomitant of article 14 of the Constitution
But it follows naturally that equal pay for unequal work will be a negation of that right The learned Judge further observed SCC pp 104 105 para 11 The same amount of physical work may entail different 435 quality less it varies from nature and cul ture of employment
The problem about equal pay cannot always be translated into a mathe matical formula
If it has a rational nexus with the object to be sought for as reiterat ed before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or infact
In State of UP and Others vs
JP Chaurasia  Ors   this Court negatived the claim of Bench Secretaries for equal pay for equal work on the basis of reasonable classification based on merit experience and seniority though both set of employees were performing the similar duties and having similar responsibilities
In Mewa Ram Kanojia vs All India Institute of Medical Sciences  Ors Judg
Today 12 this Court refused to grant relief to the petitioner for parity in pay on the application of the principle of equal pay for equal work  on the ground of reasonable classification on the basis of educational qualifications
In view of the above discussion we are of the opinion that where two class of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifi cations 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 two different scales of pay
If on an analysis of the relevant rules orders nature of duties functions measure of responsibility and education al qualifications required for the relevant 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
Principle of equal pay for equal work is applicable among equals it cannot be applied to unequals
Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two class of employees without there being any reasonable classifica tion 436 for the same
If the aggrieved employees fail to demonstrate discrimination the principle of equal pay for equal work cannot be enforced by court in abstract
The question what scale should be provided to a particular class of service must be left to the Executive and only when discrimination is practised amongst the equals the court should intervene to undo the wrong and to ensure equality among the similar ly placed employees
The Court however cannot prescribe equal scales of pay for different class of employees
In the instant case the graduate overseers have all along being treated separate entity from the non graduate supervisors and they have been drawing different pay since long
The Constitution Bench has already recorded findings that two set of officers namely graduate supervisors and non graduate supervisors do not belong to the same class of service and unequal treatment relating to promotion is justified on the basis of educational qualification
There fore the classification made between the graduate supervi sors and non graduate supervisors is reasonable and the State Government did not violate Article 14 or 16 of the Constitution in prescribing different scales of pay for them
In result the appeal fails and is accordingly dis missed
There will be no order as to costs
RSS Appeal dis missed


Summary:
The second respondent who is the predecessor in inter est of the first respondent had on
26th September 1946 leased out the land in dispute to the appellant at the first instance for a period Of 10 years
The lease however provid ed to the lesseeappellants option of extension at enhanced rent twice for successive periods of 5 years and a third option of extension for a further maximum period of one year
The appellants are stated to have exercised their option of extension for two successive periods of five years hot failed to exercise the option of extension for one year thereafter
On that ground the first respondent instituted a suit for ejectment khas possession and mesne profits
The appellants as defendants contested the malt stating inter alia that they did not exercise the option for renewal after the expiry of the original tern of 10 years as they became thika tenants from 28th February 1949 ie the date of commencement of the Calcutta Thika Tenancy Act 1949 as admitted by the second respondent in two judi cial proceedings before the Controller under the Calcutta Thika Tenancy Act 1949
It was further stated that they never paid any enhanced rent and that the first respond ent s claim for the differential rent was rejected in the first respondent s suit and ultimately the special leave petition filed in the Supreme Court in that matter was also dismissed
402 The suit for ejectment in the present suit was decreed by the Trial Court
The Appellate Court while dismissing the appellants appeal held that 1 the lease was for a period of 20 years and not for a period of less than 12 years and hence sub section 5b of Section 2 of the Act had no application and 2 the respondent were not barred by waiver estoppel res judicata or principles analogous thereto because of the earlier judicial proceedings filed by the second respondent as there could be no question of giving a status under the Act when in the facts of the case such a status was not available
The High Court dismissed the appellants  second appeal
Before this Court it was urged on behalf of the appel lants that 1 there could be no controversy about the appellants  status of thika tenants in view of the fact that the lease was at the first instance for 10 years only and its first and subsequent extensions were contingent on the appellants regular payment of rents rates and taxes and enhancement of rent which contingency did not happen as they did not pay any enhanced rent but simply were holding over 2 the second respondent admitted the Thika Tenants status of the appellants in the earlier proceedings before the Controller and were therefore estopped from questioning that status
On the other hand it was urged on behalf of the re spondent that the lease having clearly been for a period of 20 years the appellants have rightly been held not to be thika tenants under the Act and that there could be no estoppel against a statute
Dismissing the appeal it was HELD 1 Every contract is to be construed with refer ence to its object and the whole of its terms
The best interpretation is made from the context
The whole context must be considered to ascertain the intention of the par ties
It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ex antecedentibus et consequen tibus  every part of it my be brought into action in order to collect from the whole one uniform and consistent sense if that is possible
409E G NE Railway vs Hastings 267 referred to
2 In the construction of a written instrument it is legitimate and in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances sur 403 rounding their creation and the subject matter to which it was designed and intended they should apply 410A B 3 It is pertinent to note that the word used is exte nsion  and not renewal 
To extend means to enlarge ex pand lengthen prolong to carry out further than its original limit
Extension ordinarily implies the continued existence of something to be extended
The distinction between extension  and renewal  is chiefly that in the case of renewal a new lease is required while in the case of extension the same lease continues in force during addi tional period by the performance of the stipulated act
In other words the word extension  when used in its proper and usual sense in connection with a lease means a prolonga tion of the lease
411C E 4 Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole
The purposes of the lease were not expected to last for only 10 years as the Schedule specifically men tioned the lease as for a stipulated period of twenty years 411E Kanai Lal vs Paramnidhi   Mahadeolal Kanodia vs Administrator General of West Bengal   Annapuma vs Tincowrie Dutt   Shaf fiuddin  Ors
vs GC Banarjee and Sheikh Gufan vs SK Ganguli  distinguished
5 No particular order from the previous judicial proceedings conferring the status of thika tenants on the appellants has been shown
The special leave petition was dismissed by the Supreme Court without going into the question whether the Thika Tenancy Act was applicable or not
 Hence no status could be said to have been deter mined
413D F 6 The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right
It means forsaking the asser tion of a right at the proper opportunity
413F G 7 Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surren der the right while in estoppel such intent is immaterial
The necessary condition is the detriment of the other party by the conduct of the one estopped
An estoppel may result though the party estopped did not intend to lose any exist 404 ing right
Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of a right in question
Nothing of the kind could be proved in this case to estopp the first respondent who had filed the suit at the proper opportunity after the land was trans ferred to him
413G H 414A B Shanti Devi vs
AK Banerjee  referred to