Case: Chief Secretary To Government of Andhra Pradesh and Another Vs. V.J. Cornelius Etc

of the decision of this Court in B. S. Vadera v. Union of India, Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution, whether retrospective or prospective in effect, must be enforced, if framed by the appropriate authority, unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution. He was of the view that sub-r. (2) of r.5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment, guaranteed under Arts. 14 and 16 and was, therefore, void and unconstitutional. He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of sub-r. (2) of r.5 of the Rules. The learned Judges ob served that if FR 22(a) (ii) was applicable, and there was no reason why it should not be made applicable, the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs. 500 which was the minimum of the time-scale fi xed for the Selection Grade of Deputy Tahsildars. According to him, sub-r. (2) of r.5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selec tion Grade; but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar, co uld not draw more pay than that drawn by his senior, although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed. The learned Judge observed: To put in the words Chinnappa Reddy, J. it amounts to denial of the principle of equal pay for equal work enshrined in Art. 39 of the Constitution as one of the Directive Principles of State Policy and violates Arts. 14 and 16 which guarantee equality before the law and equal opportunity in the matter of public employment.The appellant, in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning: Department (Finance Wing) admits that the judgment of Muktadar, J., in Krishnamurthys case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question had become final, or that the Government had lost its right of appeal in other similar matters. We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same. There has been total failure on the part of the Government to realise that the replacement by sub-r. (2) of r.5 of the Rules, of the executive instruction contained in the U.O. Note, does not cure the constitutional vice inherent in the governmental action. 5. This is nothing but a plea of justification for the Government had, in the meanwhile, on the strength of the offending U.O. Note and sub-r. (2) of r. 5, promoted thousands of their employees to Selection Grade posts in different departments, but fixed their pay at a point lower than the pay drawn by their seniors in the next higher grade. There have been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affected. 6. The Government, in stead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts, in compliance with the directions of the High Court, but declined to do so in the case of others on the pretext that the re-fixation would be done only in the case of employees who have secured such directions. It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle. We were asked to determine the validity of sub-r. (2) of r.5. It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub-r.(2) of r.5. We are afraid, the question does not arise in these appeals. It is quite clear from the judgments under appeal that the validity of sub-r. (2) of r.5 was not in question. We are constrained to observe that if the Government wanted to question the correctnes s of the judgment in D. Krishnamurthys case, the selection grade provided that if his senior in the higher finality which cannot now be upset. In that judgment, Muktadar, J., struck down sub-r. (2) of r.5 as ultra vires the Government as being violative of Arts. 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii). The effect of the judgment of Muktadar, J., in Krishnamurthys case (supra) is that sub-r. (2) of r.5 is wiped out for all purposes and the re-fixation will have to be done as if sub-r. (2) of r. 5 never existed. The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.In the result, the appeals and the special leave petitions are dismissed. There shall be no order as to costs. 7.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]This is nothing but a plea of justification for the Government had, in the meanwhile, on the strength of the offending U.O. Note and sub-r. (2) of r. 5, promoted thousands of their employees to Selection Grade posts in different departments, but fixed their pay at a point lower than the pay drawn by their seniors in the next higher grade. There have been several judgments of the High Court and of the Andhra Pradesh Administrative Tribunal on writ petitions filed by the persons so affectedThe Government, in stead of following a uniform policy, have refixed the pay of some of the employees holding Selection Grade posts, in compliance with the directions of the High Court, but declined to do so in the case of others on the pretext that the re-fixation would be done only in the case of employees who have secured such directions. It is impressed upon us that the Government wants a decision on merits as the matter involved a question of principle. We were asked to determine the validity of sub-r. (2) of r.5. It was urged that the Government wants a clear pronouncement on the extent of their powers in the matter relating to fixation of pay of a person appointed to the Selection Grade, in accordance with sub-r.(2) of r.5. We are afraid, the question does not arise in these appeals. It is quite clear from the judgments under appeal that the validity of sub-r. (2) of r.5 was not in question. We are constrained to observe that if the Government wanted to question the correctnes s of the judgment in D. Krishnamurthys case, the selection grade provided that if his senior in the higher finality which cannot now be upset. In that judgment, Muktadar, J., struck down sub-r. (2) of r.5 as ultra vires the Government as being violative of Arts. 14 and 16 of the Constitution and as being not in conformity with FR 22(a)(ii). The effect of the judgment of Muktadar, J., in Krishnamurthys case (supra) is that sub-r. (2) of r.5 is wiped out for all purposes and the re-fixation will have to be done as if sub-r. (2) of r. 5 never existed. The whole attempt of the Government in filing these appeals is to retrieve the lost ground which cannot be permitted.In the result, the appeals and the special leave petitions are dismissed. There shall be no order as to costswhether the Government is competent to withhold the Selection Grades contrary to FR 22(a) (ii) to which the respondents were entitled on their being appointed to Selection Grade posts4. In D. Krishnamurthy &Ors. v. State of Andhra Pradesh &Anr. (Wr it Petition No. 4459 of 1972), Muktadar, J., by his judgment dated August 12, 1974, struck down the rule as it was violative of Arts. 14 and 16 of the Constitution. The learned Judge observed that in view of the decision of this Court in B. S. Vadera v. Union of India, Ors it was settled law that rules framed under the proviso to Art 309 of the Constitution, whether retrospective or prospective in effect, must be enforced, if framed by the appropriate authority, unless it can be shown that the rules so framed are in violation of any of the rights guaranteed under Part III or any other provision of the Constitution. He was of the view that. (2) of r.5 of the Rules does not satisfy the test because it takes away the rights to equality before the law and equality of opportunity in matters of public employment, guaranteed under Arts. 14 and 16 and was, therefore, void and unconstitutional. He was dealing with the case of Deputy Tahsildars in the Nizamabad District who were promoted to the Selection Grade but could not draw their pay of Selection Grade because it exceeded the pay of their immediate seniors working as Tahsildars, by reason of. (2) of r.5 of the Rules. The learned Judges ob served that if FR 22(a) (ii) was applicable, and there was no reason why it should not be made applicable, the pay of the Deputy Tahsildars in the Selection Grade could not be fixed at less than Rs. 500 which was the minimum of thee fi xed for the Selection Grade of Deputy Tahsildars. According to him,. (2) of r.5 was per se discriminatory because a Deputy Tahsildar in the Selection Grade with no seniors promoted to a higher post could draw minimum pay of such Selec tion Grade; but a Deputy Tahsildar in the Selection Grade who unfortunately had a senior promoted to a higher post who drew a pay in that higher post which was less than the minimum of the scale of pay of Selection Grade Deputy Tahsildar, co uld not draw more pay than that drawn by his senior, although he was performing the same duties and discharging the same responsibilities attached to such Selection Grade posts for which higher emoluments had been prescribed. The learned Judge observed:o put in the words Chinnappa Reddy, J. it amounts to denial of the principle of equal pay for equal work enshrined in Art. 39 of the Constitution as one of the Directive Principles of State Policy and violates Arts. 14 and 16 which guarantee equality before the law and equal opportunity in the matter of publice appellant, in the supplementary affidavit filed by the Deputy Secretary to Government of Andhra Pradesh, Finance and Planning: Department (Finance Wing) admits that the judgment of Muktadar, J., in Krishnamurthys case supra had become final because steps were not taken in time to go in appeal; but, nonetheless, asserts that since the matter before the learned Judge related to Selection Grade Deputy Tahsildars, it was wrong to suggest that all the judgments of the High Court involving a similar question had become final, or that the Government had lost its right of appeal in other similar matters. We are really at a loss to appreciate this attitude on the part of the Government in showing scant respect to the High Court although the judgments had become final and the point involved was one and the same. There has been total failure on the part of the Government to realise that the replacement by. (2) of r.5 of the Rules, of the executive instruction contained in the U.O. Note, does not cure the constitutional vice inherent in the governmental action.