Judgment Case ID: 250

Judgment:
Appeal No. 2 of 1954. Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated the 10th September	 1953	 of the High Court of Judicature at Nagpur in Miscellaneous Petition No. 123 of 1953. M. C. Setalvad	 Attorney General for India (P. P. Naik and I. N. Shroff	 with him) for the appellant. M. K. Nambiar (Rajinder Narain	 with him) for the respondent. B. Sen and P. K. Bose for the Intervener (State of West Bengal). May 13. The circumstances under which the above Resolution came to be adopted may be briefly mentioned. Consequent on the war	 there was a phenomenal rise in the price of foodstuffs and of other essential commodities	 and among the persons worst hit by it were the Government servants. As a measure of relief to them	 the Central and the Provincial Governments sanctioned a grant of grain allowances to them under various Resolutions passed in 1940. The scheme adopted by the Central Government was that its employees stationed in various Provinces received the same benefit as the respective Provincial Government employees. But this scheme was found to be unsuitable for employees of the Central Government	 as the allowances granted by the Provincial Governments were not uniform. On 10th May	 1946	 the Central Government appointed a Central Pay Commission	 hereinafter referred to as the Commission	 to enquire into and 601 report on the conditions of service of its employees with particular reference to I 'the structure of their pay scales 'and standards of remuneration with the object of achieving a rationalisation	 simplification and uniformity to the fullest degree possible. " The Commission	 which was presided over by Sir section Varadachariar	 recommended by its report dated 3rd May	 1947	 the grant of dearness allowance on a specified scale. On 27th May	 1947	 the Government of Central Provinces and Berar appointed a Pay Committee	 hereinafter referred to as the Committee	 "to examine the recommendations of the Central Pay Commission and to report the extent to which and the modifications subject to which these recommendations should be accepted by the Provincial Government	 so far as Government servants under its rule making control are concerned." By its report dated 22nd June	 1948	 the Committee recommended the grant of dearness allowance on a scale which	 though practically identical with that adopted by the Commission in respect of salaries above Rs. 400 per mensem	 was less than it as regards salaries of Rs. 400 per mensem or less. These recommendations were accepted by the Government by its Resolution dated 16th September	 1948. This difference in the result between the two scales not unnaturally caused considerable dissatisfaction among the employees concerned	 and after unsuccessful attempts to get redress on the executive side	 they filed through their representative	 the respondent	 the present application under article 226 of the Constitution. In the petition it was alleged that "the State Government should have uniformly adopted the Government of India rates for all its servants and the discrimination in making the two fold slab and accepting the Government of India rates for one slab	 i.e.	 for servants receiving salary over Rs. 400	 and not accepting them in respect of the other slab	 i.e.	 of servants drawing below Rs. 400	 is highly discri minatory	 that the State Government servant has a right to be treated equally with the Central Government servant similarly situated	 and that every servant has these fundamental and natural rights and 77 602 the petitioner and the members of the Ministerial Services Associations have a right to demand from the respondent the Dearness Allowance at the Government of India rates. " The petitioner then prayed: "That declaring that all ministerial servants are entitled to the Government of India rates of Dearness Allowance or in any case adequate Dearness Allowance	 the State Government should be directed by a writ of mandamus or by any other suitable writ or direction to cancel the discriminatory rules of Dearness Allowance and adopt the Government of India rates to all servants without discrimination or in any case	 to provide with adequate rates of Dearness Allowance sufficient to provide reasonable subsistence for them." The Government contested the petition on the grounds	 firstly	 that the claim for dearness allowance was not justiciable	 and secondly	 that the difference in the scales of dearness allowance adopted by the Commission and by the Committee did not violate article 14. The learned Judges (Sinha C.J. and Bhutt J.) held that under the rules dearness allowance was placed on the same footing as pay	 and that the claim relating thereto was therefore justiciable; and that the differentiation made between the employees of the Central Government and of the State Government in the matter of the grant of dearness allowance rested on "no intelligible and reasonable basis	 and that the Resolution dated 16th September, 1948, was therefore bad. They accordingly issued a direction to the State Government that they do reconsider the question of dearness allowance payable to the employees concerned. It is against this judgment that the present appeal has been preferred by the State Government on a certificate granted under article 132(1) of the Constitution. It is argued on behalf of the appellant firstly that grant of dearness allowance is a matter ex gratia and not justiciable, and that neither a writ of mandamus nor any direction could be issued with reference thereto, and secondly, that the Resolution dated 16th September, 1948, is not hit by article 14 of the Constitution. In our opinion, both these contention are well founded 603 On the first question, Rule 44 of the Fundamental Rules runs as follow: Subject to any restrictions which the Secretary of State in Council may by order impose upon the powers of the Governor General in Council or the Governor in Council	 as the case may be	 and to the general rule that the amount of a compensatory allowance should be so regulated that the allowance is not on the whole a source of profit to the recipient	 a Local Government may grant such allowance to any Government servant under its control and may make rules prescribing their amounts and the conditions under which they may be drawn. " Under this provision	 it is a matter of discretion with the local Government whether it will grant dearness allowance and if so	 how much. That being so	 the prayer for mandamus is clearly misconceived	 as that could be granted only when there is in the applicant a right to compel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance; it imposes no duty on the State to grant it. It merely confers a power on the State to grant compassionate allowance at its own discretion	 and no mandamus can issue to compel the exercise of such a power. Nor	 indeed	 could any other writ or direction be issued in respect of it	 as there is no right in the applicant which is capable of being protected or enforced. The learned Judges of the High Court relied on certain rules which put dearness allowance on the	 same footing as pay for certain purposes	 and held on the authority of the decision in The Punjab Province vs pandit Tara Chand(1) that the present claim was justiciable. But The Punjab Province vs Pandit Tara Chand was an action for recovery of arrears of salary	 land it was held that under the law of this country which differed in this respect from that of England	 arrears of salary were a debt due by the Government	 that they could be attached in execution of a decree under section 60	 Civil Procedure Code	 as a debt	 and that on that basis an action to recover the same was (1) 604 maintainable. This decision was quite recently approved by this Court in State of Bihar vs Abdul Majid(1)	 wherein it was pointed out that salary was not in the nature of a bounty	 and that whatever was recoverable by a Petition of Rights in England could be recovered by action in this country. This question may therefore now be taken to be settled beyond controversy. But we are not concerned in the present proceedings with any debt payable by the Government. The claim is not to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto. The claim now put forward its to compel the Government to grant dearness allowance at a particular rate	 and under Rule 44 of the Fundamental Rules	 such a claim is a matter of grace and not a matter of right. In England	 no petition of right will lie in respect of such a claim. The position is thus stated in Halsbury 's Laws of England	 Volume IX	 page 688	 Note (s) @: " It is erroneous to suppose that a petition of right will lie for matters which are of grace and not of right. [De Bode (Baron) vs R.(2).]" That is also the law in this country where an action is a substitute for a petition of right. In the result	 we must hold that the matters raised in the petition are not justiciable. Mr. Nambiar	 the learned counsel for the respondent	 did not dispute the correctness of this position. But he argued that when once the Government passed 'a Resolution fixing a scale of allowance under Rule 44	 that would be law as defined in article 13(3)(a) of the Constitution	 and if that law infringed	 article 14	 it could be declared void. That is a contention which is clearly open to him	 and the question therefore that falls to be decided is whether the Resolution dated 26th September	 1948	 is bad as infringing article 14. Now	 the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance if; to I be paid to the employees on a scale graded according to pay	 different rates being adopted for different slabs and there being a progressive reduction (1) ; (2) 13 Q. B 364 exhibit Ch. at P 387 605 of the rate from the lowest to the highest category. No contention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article 14. Secondly	 within any given slab	 the scheme places all the employees in the same position	 except that in the lowest ranks a slightly higher rate is fixed for residents in the cities of Nagpur and Jubbulpore	 which again has not been attacked as discriminatory. These being the features of the scheme	 there can be no room for the contention that it has made any discrimination. Mr. Nambiar does	 not contend that there is anything in the scheme or in the Resolution adopting it	 which bring s it within the prohibition enacted in article 14. His contention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of. over Rs. 400	 but when they came to those employees who drew a monthly salary of Rs. 400 or less	 they discarded the rates fixed by the Commission	 and	 instead	 adopted different and lower rates	 and that this was discrimination hit by article 14. In other words	 the impugned Resolution	 though valid in itself as not infringing article 14	 becomes void under that provision when it is taken in conjunction with the report of the Commission. We do not find anything in article 14 which supports this somewhat startling contention. Under the Constitution	 the Union and the States are distinct entities	 each having its own executive and Legislature	 with their powers well defined. Article 12 defines "the State" as including the Government and the Legislature of each of the States. Article 13(2) enacts that the State shall not make any laws taking away	 or abridging the rights conferred by Part III	 and article 14 enacts that	 "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. " On these provisions	 the position is that when a law is impugned under article 13	 what the Court has to 606 decide is whether that law contravenes any of the provisions of Part III. If it decides that it does	 it has to declare it void; if it decides that it does not	 it has to uphold it. The power of the Court to declare a law void under article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation	 it might be open to the Court to disregard the form and treat them as one law and strike it down	 if in their conjunction they result in discrimination. But such a course is not open where	 as here	 the two laws sought to be read in conjunction are by different Governments and by different Legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different	 article 14 can have no application. The result	 therefore	 is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to article 14. It may no doubt 	sound hard that Government servants doing work of a similar kind and working	 it may be	 even in the same place	 should receive different allowances; but the rights of the parties have to be decided on legal considerations	 and it is impossible to hold that the Resolution in question is bad under article 14. It was argued on behalf of the appellant that the assumption underlying the argument of the respondent with reference to article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation. In the view we have taken on the applicability of article 14	 this question has no practical importance; but as 607 all the materials have been placed before us	 we may briefly express our opinion thereon. In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the cost of living index	 they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the cost of living index the element of pay had also been taken into account	 but that as they had revised the scale of basic pay	 they were not including it in fixing the dearness allowance. In paragraph 31	 they observed that unlike the Commission they were taking into consideration the financial resources of the State in fixing the scale. Thus	 the Committee approached the problem from a different angle	 and applied different principles in fixing the scale of dearness allowance; and if the two schemes produced the same results at some stages	 that was due to coincidence and not to adoption of the report of the Commission by the 'Committee. Mr. Nambiar also referred us to two Resolutions of the appellant dated 4th January	 195 1	 and 6th October	 195 1	 adopting the scale fixed by the Commission in respect of certain other categories. That has no bearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination. The facts stated above show that the Committee went into the matter independently	 and viewed the question from a different standpoint; and in formulating the scheme which they did	 they did not adopt the Report of the Commission	 though they derived considerable assistance from it. In the result	 this appeal must be allowed and the petition of the respondent dismissed; but in the circumstances	 there will be no order as to costs either here or in the Court below. Appeal allowed.

Summary:
The Government of Central Provinces and Berar (Now State of Madhya Pradesh) fixed in 1948 a scale of dearness allowance for its servants which though practically identical with the scale of dearness allowance fixed by Central Government in respect of salaries over Rs. 400 per mensem was less than it in respect of salaries for Rs. 400 per mensem or less. The petitioner State government servant challenged the validity of the order of the State Government on the ground that his fundamental right under article 14 of the Constitution had been violated inasmuch as he had a right to be equally treated with the Central Government Servants similarly situated. Held	 that under the provisions of Rule 44 of the Fundamental Rules it is a matter of discretion with the local Government whether it will grant dearness allowance to any Government servant and if so how much. It imposes no duty on the State to grant it and therefore no mandamus can issue to compel the State to grant it nor can any other writ or direction be issued in respect of it as there is no right in the Government servant which is capable of being protected or enforced. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The sources of authority for the two statutes being different	 Article 14 can have no application. Therefore 'the scale of dearness allowance sanctioned by the Central Government can furnish no ground for holding that the allowance sanctioned by the Government of Central Provinces and Berar is repugnant to Article 14. The State Government was entitled to fix the Government of India rates for one slab and Ali; different rates for another slab	 600 The Punjab Province vs Pandit Tara Chand ([1947] F.C.R. 89)	 and State of Bihar V. Abdul Majid ([1954] S.C.R. 786) distinguished.