Case: Fertilizer Corpn. Of India  Vs. Sarat Chandra Rath

2. The respondents 1 to 23, prior to 1st January 1987, were employed as workmen by the appellants. On 29th January 1982 a seven years stagnation scheme was introduced by the appellants whereunder its employees in the highest workmens pay scale, who had been stagnating for seven years, were promoted to the lowest officers scale. These employees, who were workmen and were called senior operators, senior technicians etc. were, on their placement in the lowest officers scale, designated as Assistant Foremen (AFM `D), Junior Officers (JO `D) etc. On such placement in the officers grade these erstwhile workmen were treated as officers and they received all the facilities admissible as officers.3. On 30th October, 1983 a draft of settlement under Section 18 ofthe Industrial Disputes Act, 1947 (for short `the Act) for the pay revision was finalised between the management and the workmen. Based on this on 25th February, 1984 a further settlement under Section 18 of the Act was entered into between the management of the FCI Talchar unit, the appellants herein and its workmen. This settlement was, inter alia, for revision of various pay scales. The revised pay scales so fixed were to be effective from 1st January 1983 to 31st December, 1986, the highest scale of workmen being Rs. 915-1520. The agreement further contemplated that the next wage agreement was to be effective from 1st January, 1987. It also sought to touch upon some of the anomalies which were prevailing with respect to the implementation of seven years stagnation scheme. The relevant salient features of this agreement/settlement were that with effect from 11th August, 1986 the workmen in the higher scale on fulfilling eligibility conditions under the stagnation scheme were only to be placed (not promoted) from their existing scale of Rs. 915-5120 to the lowest officers scale of Rs. 960-1610 and on such placement they were to be given the designation of Junior Foreman (W). On such placement the said persons were entitled to DA as admissible to officers but all other allowances, benefits, union membership etc., which they had as workmen, were to remain unaltered.4. As a result of the aforesaid settlement dated 11th August, 1986 there were, as on 31st December 1986, employees who had already undergone placement from the highest workers scale of Rs. 915-1520 to the lowest officers scale of Rs. 960-1610 on account of the fact that they had fulfilled the eligibility conditions under the seven years stagnation scheme on some dates before 31st December, 1986. However, workmen like the respondents who had not fulfilled the aforesaid eligibility conditions under the stagnation scheme as on 31st December 1986 continued to remain in the workmens category, as on that day, in the pay scale of Rs. 915-1520.5. The earlier agreement whereby pay scales were fixed from 1st January 1983 to 31st December, 1986 having come to an end, the Government of India, by an order dated 4th February, 1987, decided that negotiations should take place between the management and the companies so as to bring into existence the new wage settlement to be made effective from 1st January, 1987. Pending fresh fixation of pay scales the workmen and the officers with effect from 1st January, 1987 continued to get their salaries in the existing pay scales, i.e., the respondents 1 to 23 in the pay scales of Rs. 915-1520 and the persons placed in the lowest pay scale of the officers category in the pay scale of Rs. 960-1610.6. The said respondents 1 to 23 fulfilled the eligibility conditions under the seven years stagnation scheme on 1st September, 1987. By office memorandum dated 7th November, 1987 these respondents were placed in the officers pay scale of Rs. 960-1610 with effect from 1st September, 1987.7. A draft agreement dated 1st July, 1987 for the purpose of revising the workmens pay scales from 1st January, 1987 was finalised between the management and the workmen at their inter companys level. The Government of India approved the aforesaid agreement and on 23rd March, 1990 a settlement under Section 18 of the Act was entered into between the appellants and the respondents. The salient features of the said settlement are as followsThe settlement i.e. the new pay scales for workmen were effective from 1.1.1987 to 31.12.1991.(ii) In the case of workmen placed in the officers category of JFM (W) on any date after 1.1.1987, fixation was to be done in the revised workmens pay scale from 1.1.1987 upto the date they remained in the workmens category in the pre-revised scale of 915-1520 and the arrears were to be paid to them till that date in accordance with the revised scale of 1580-1842. (However, such employees were to continue to draw for future i.e. from the date on which they were placed in the officers pay scale the same pay as they had been drawing after that date in that scale, namely, 960-1610).(iii) The workmen who were already enjoying the officers grade under stagnation scheme before 1.1.1987 were to continue in their current officers scale i.e. 960-1610; however, when the revised pay scales for officers would become available, the appropriate scale was to be made applicable to them.Respondents 1 to 23 got the benefit of this agreement while those employees who were in the officers grade prior to 1st January, 1987 had to wait till their scales were revised and, till then, continued on the pre- revised scales of pay.9. With regard to the officers category, the Government of India issued a communication on 25th March, 1991 approving the revision of their pay scales.10. That on 18.4.1991, based on the aforesaid communication/approval of the Government of India, the Central office of FCI issued an office memorandum for revision of pay scale and fringe benefits for officers in FCI. The consequences of the said Office Memorandum are summarisedthe revised scales of pay were to remain in operation with effect from 1.1.1987 for a period of 5 years.(ii) the officers scale of 960-1610 was revised to 2200-3600 inclusive of fitment amount of Rs. 400/-, the new scale being effective from 1.1.1987.(iii) the officers (including JFM (W)s) who were on the rolls of the company on 1.1.1987 were to be fitted into the corresponding revised pay scale as per the formula given in para 5.1 which included a fitment amountpara 5.1 of the said circular is as followsExecutives who were on the rolls of the company on 1st January, 1987 will be fitted into the corresponding revised scales of pay as per the following fitment method :-Basic pay in the existing scale of pay as on 1.1.1987.PlusFirst ad hoc relief related to actual basic as on 1.1.1987.PlusIndustrial DA Rs. 838.35 at AICPI 685 as on 1.1.1987.PlusFitment amount as applicable.On the aggregate arrived at, pay will be fixed in the revised scale of pay, where the total does not fit in a stage of the revised scale of pay, the pay will be fixed at the next higher stage.While fixing pay as per the above method, annual increment/advance increment falling on 1.1.1987 in the old scale, if any, should be excluded. Hence the first ad hoc relief should be related to the Basic Pay in the existing scale as on 31.12.1986. In other words, the annual, increment falling on 1.1.1987 will be given in the revised pay scale.(iv) for the officers (including JFM (W)s) who had undergone placement only on a date after 1.1.1987, a different fitment formula was stipulated in para 5.3 and the same did not include any fitment amount.The said para 5.3 of the same circular is as followsOF FIXATION OF PAY OF SUCH OF THE EMPLOYEES WHO HAVE BEEN PROMOTED FROM THE HIGHEST CATEGORY OF WORKMEN TO THE JUNIORMOST CATEGORY OF OFFICERS ON OR AFTER 1.1.1987.The pay of such category of employees will be fixed in the revised pay scale of Rs. 2200-100-3600 as per procedure elaborated below :-5.3.1. Take basic pay of workmen category in the revised pay scale of Rs. 1580-2842 on the date of promotion.5.3.2. Find out the quantum of DA i.e. fixed DA + VDA as admissible to workmen category on the date of promotion.5.3.3. Allow one notional increment in the revised scale of Rs. 1580-2842 attached to the workmen category.5.3.4. Add (i), (ii) and (iii) from the aggregate amount thus arrived, deduct revised DA applicable to Officers category as on date of promotion (Annexure-II).*5,3,5 On the aggregate now arrived at, pay will be fixed in the revised pay scale of Rs. 2200-100-3600 attached to the post of Asstt. Foreman/Jr. Officer and equivalent. Where the total does not fit in a particular stage, the pay will be fixed at the next higher stage in the revised scale of Rs. 2000-100-3600.That from time to time certain ad hoc advances were being drawn by the Junior Foreman (W) under different ad hoc arrangements between the parties. These advances were required to be adjusted against future benefits on revision of pay scales etc. However, when the pay scales of the said respondents were fitted into the revised pay scale of officers under the Office Memorandum dated 18th April, 1991, such employees started drawing lower emoluments, prior to the revision of the officers pay scales. On 31st October, 1991, as a special gesture for them the differential amount was made payable as personal pay to be adjusted against future increments, promotional benefits or benefits on revision of pay scales, whichever came earlier. When, however, the personal pay started being adjusted and recovered against the next increments due to such employees, they demanded that adjustments be made only from the benefits which may become due on promotion or revision of pay scales and not against increments.13. The appellants did not accede to the aforesaid demand relating to the adjustment. Consequently the said respondents filed a writ petition on being OJC No. 1742 of 1993 in the Orissa High Court seeing a relief that the personal pay should be adjusted only against the benefits available on promotion or revision of pay scales and not against the next increment due to them. In the writ petition there was no payer for quashing the fitment formula for post 1.1.1987 Junior Foreman (W) as was contained in para 5.3 of the Office Memorandum dated 18th April, 1991, nor was there any demand that fitment amount of Rs. 400/- given to pre 1.1.1987 Junior Foremen (W) should also be awarded to post 1.1.1987 Junior Foreman (W).14. In the counter-affidavit the case of the appellants was that pre 1.1.1987 and post 1.1.1987 Junior Foremen (W) were two different classes of employees and there was no discrimination between them in the matter of fitment or revision of pay scales having regard to the date of 1st January, 1987. It was also categorically stated that post 1.1.1987 Junior Foremen (W) like the respondents had been given the benefit of revised workmens pay scales of Rs. 1580-2842 for the period 1st January, 1987 to the date of their placement, which was 31st August, 1987 in the case of the respondents.15. The High Court, while allowing the writ petition, observed that there were two questions which essentially arose for its consideration. The first was whether the fitment amount indicated in the circular dealing with the revision of pay scales and fringe benefits of officers of the appellants was a part of the pay scale. The second question was whether the impugned circular as well as the method of fixation of pay of Junior Foremen, who were placed in the officers grade prior to 1st January, 1987 and those placed in that officers grade after 1st January, 1987, was hit by the principle of discrimination. The High Court did not address itself or decide the question with regard to the manner in which the adjustment of the personal pay was to be made. Presumably this contention was not urged at the time of arguments.16. While considering the aforesaid two questions the High Court observed that the counsel for the appellants herein had conceded that the respondents/writ petitioners had not been paid their arrears on the revision of workmens pay scales from Rs. 915-1520 to Rs. 1580-2842 for the period 1st January, 1987 to 31st August, 1987. Having recorded this concession the High Court considered that ``on the aforesaid conceded position, we would now examine the two questions posed by us and answer the same.17. In the special leave petition filed by the appellants it was specially stated that no such concession was made by the counsel for the appellants before the High Court. In support thereof affidavit of Sh. B.S. Tripathi, Advocate who appeared for the appellants before the High Court was filed in which it was, inter alia, stated that he had not made any concession as recorded by the High Court.During the hearing of this appeal Sh. Tapas Ray, learned senior counsel for the respondents, very fairly stated that the said observation of the High Court was probably not correct and in fact the respondents were paid their arrears on the revision of their pay scale from Rs. 915-1520 to Rs. 1580-2842 with effect from 1st January, 1987 to 31st August, 1987. Thereafter with effect from 1st September 1987, though they were initially placed in the lowest of the then prevailing officers grade of Rs. 960-1610, but on retrospective revision of this scale they were placed in the revised scale of Rs. 2200-3600.18. The High Court having thus proceeded on a wrong assumption of an essential fact has, possibly for this reason, incorrectly answered the aforesaid two questions posed by it. The High Court was wrong in coming to the conclusion that there has been violation of Article 14 of the Constitution and that in the method of fixing the pay of these employees who have been promoted from the highest category of workers to the juniormost category of officers on or after 1st January, 1987 must be held to have been grossly discriminated.

Reasoning:
19. From the facts enumerated hereinabove it is quite evident that the question of discrimination or violation of Article 14 of the Constitution does not really arise in the present case.20. From the facts stated hereinabove it cannot be disputed that respondents 1 to 23 as on 1st January, 1987 had not acquired the officers grade and were working as Assistant Foremen.From the aforesaid it is clear that the two categories of Junior Foremen (W) were dealt with by two different sets of rules because as on 1st January, 1987 they were not similarly situate. Whereas the respondents herein were Assistant Foremen, those who were placed in the officers grade prior to 1st January, 1987 were regarded as officers. There could thus be no comparison betweren these two categories of persons. These two categories were unequal and respondents could not, in law, make any grievance if different principles were adopted in the fixation of their respective pay scales.22. The effect of the High Court judgment is that the fixation of pay of post 1st January, 1987 Junior Foremen (W) like the respondents in the revised officers pay scale has been done on the basis of their revised grade of Rs. 1580-2842. On the other hand the fixation of pay of pre 1st January, 1987 Junior Foremen (W) has been done on the basis of their unrevised officers grade of Rs. 960-1610 after giving them a fitment of Rs. 400/-. The direction to grant the additional fitment benefit of Rs. 400/- to the post 1st January, 1987 Junior Foremen (W), whose pay has been revised on the basis of the grade of Rs. 1580-2842, would result in an undue and unjust double advantage being given to the respondents herein. There would, in effect, be a reverse discrimination inasmuch as if the judgment of the High Court is given effect to then the respondents would get more emoluments than their seniors who were placed in the officers scale prior to 1st January, 1987. It has been rightly contended on behalf of the appellants that the High Courts judgment will result in the treatment of unequals as equals, which was clearly not contemplated.23. Apart from the fact that these two classes of employees are different and are governed by different rules, it is open to the State or the appellants to change the conditions of service unilaterally.There is also considerable force in the contention of Sh. V.R. Reddy, learned Additional Solicitor General, appearing for the appellants, that the High Court ought not to have granted reliefs to the respondents which they had not even prayed for inasmuch as relief prayed for in the writ petition was only with regard to the adjustment of the personal pay against the incremental benefits. But as the case had been argued at length on the points decided by the High Court, we need not advert further on this aspect.25. From the aforesaid discussion it follows that para 5.3 of the Office Memorandum dated 18th April, 1991, which contained the principle on the basis of which the pay of the respondents was fixed in the lowest scale of the officers grade, is not invalid and the High Court fell in error in striking it