Holding

Sub‑rule (2) of rule 5 is ultra vires, violative of Articles 14, 16 and Fundamental Rule 22(a)(ii), and cannot be enforced; the High Court judgment is final and must be applied uniformly.

Summary

The Andhra Pradesh Government issued the Revised Scales of Pay Rules, 1969 and later an executive order fixing the pay of employees placed in the Selection Grade so that it would not exceed the pay of their seniors in higher posts. The High Court struck down this order as violative of Articles 14, 16 and Fundamental Rule 22(a)(ii). The Government then introduced sub‑rule (2) of rule 5 in the Rules, with retrospective effect, to achieve the same result. The High Court again declared this sub‑rule unconstitutional, but no appeal was filed against that judgment. The State argued that the earlier High Court decisions did not bind all similar cases. The Supreme Court held that once a High Court judgment becomes final, the State must apply it uniformly to all employees and cannot rely on the later sub‑rule, which remains ultra vires. Consequently, the appeals and special leave petitions were dismissed, and the pay must be fixed as if sub‑rule (2) never existed.

Issues considered

Whether sub‑rule (2) of rule 5 of the Andhra Pradesh Revised Scales of Pay Rules, 1969, which limits the pay of Selection Grade employees to not exceed that of their seniors, is constitutionally valid.
Whether the State Government can selectively implement a High Court judgment and deny relief to similarly situated employees.
Whether a High Court judgment that has attained finality binds the State in all similar matters.

Legislation cited

Constitution of Indias. Art.136, s. Art.14, s. Art.16, s. Art.22, s. Art.226, s. Art.309, s. Art.39
Fundamental Ruless. Rule 22(a)(ii)

Subjects

pay fixationselection gradearticles 14 and 16Fundamental Rule 22constitutional validityuniform policypublic employment equalityretrospective rule

Judgment

930

A CIIlEF SECRETARY TO GOVERNMENT OF
ANDHRA PRADESH & ANR.
v.
V. J. CORNELIUS ETC.

B February 18, 1981
[A. P. SEN AND E. S. VENKATARAMIAH, JJ.]

Andhra Pradesh Revised Scales of Pay Rules 1969, Rule 3(2) & Funda-
n1ental Rules, Rule 22(a) (ii)-Fixation of pay-Provision that juriior e1nployee
in selection grade of lower post not to draw more pa!' than his senior holding y--
C a higher post-Validity of. (

To implement the recomn1endations of a one·man Pay Comn1ission, the
State Government issued the Andhra Pradesh Revised Scales of Pay Rules,
1969 iiroviding for the revision of pay and creation of selection grade posts.
The selection grade scale was fixed by adding three increments to the maximU.m
of the revised scale of pay.
D
While implementing the pay scales, the Government realised that a senior
holding a perma.nent post in one category but holding a post in the next
higher grade on promotion would draw less pay in the higher post than a
junior in the lower category who was given the selection grade. To avoid the
anomalous situation thus created the Government by an executive order direct-
ed that the pay of an employee placed in selection grade shall be so fixed as not
E to exceed the pay of his senior working in the higher post on promotion.

This executive instruction was struck down by the High Court as being
"iolative of Articles 14 and 16 and also on the ground that the executive-
instruction could not prevail over Fundamental Rule 22 (a) (ii).

F The Government thereupon introduced Rule 5(2) in the Rules with retros-
pective effect from the date of the original order. In D. Krishnamurthy &
Ors v. State of Andhra Pradesh & Anr. this rule was struck down by the High
Court as being violative of Articles 14 and 16. No appeal was, however, :.___
preferred from the judgment of the High Court striking down the rule.

Instead of following a uniform policy in reviSing the pay of all employees
G in compliance with the direction of the High Court, the Government re-fixed
the pay of some of the employees holding selection grade posts but declined
to do so in the case of others on the· ground that the re-fixation would be done
only in the case of employees who had secured such directions.

In the appeals by tho Government to this Court it was contended that it •
was wrong to suggest that since no appeal had been preferred against the
H judgment of the High Court in D. Krishnamurthy's case all the judgments t:X
the High Court involving a similar question had become final ~
D. Krishnnmurthy's case related to an altogether different category of em.·
ployees of the State Government.
CHIEF SECY. TO GOVT. OF ANDHRA PRADESH V. CORNELIUS 9 31

Dismissing the appeals, A
HEID : I. When the Higb Court issues a writ, direction or order under
Art 226 of the Constitution, it is not open to the State Government to imple·
ment the decision with regard to some and deny relief to others, although they
belong to the same class of persons, and are equally governed by the principle&
laid down. The State Government is expected to adopt a uniform policy in
regard to all its employees. [936 C-DJ B
• 2, Replacement of an executive instruction by the State Government by a
rule framed under Art. 309 of the Constitution, for the fixation of pay of a per~
son promoted to the Selection Grade at a stage lower than the minimum of the
scales of pay of such Selection Grade so as not to exceed the pay of his seniors

I working in the higher posts on promotion, does not cure the constitutional vico
inherent in the Government action as the provision is violative of Arts. 14 and
16 of the Constitution. [935 G-HJ
C

3. The judgment of the High Court, by which sub-r. (2) of r. 5 of the
Andhra Pradesh Revised Scales of Pa·y Rules, 1969 having been struck down
as offending A1ts. 14 and 16 of the Constitution and as being not in conformity
with FR 22(a) (ii) not having been appealed from, had attained a finality and
the re-fixation of pay, if any, had to be done as if sub-r. (2) of r. 5 never D
existed. [937 BJ

4. It is not open to the Government to question the correctness of the
judgment of the Jfigh Cou11 when it had attained finality, particularly when in
compliance \Vith the directions, it had re-fued the pay of some of the employees
in the Selection Grade posts, on the pretext that the right of appeal was not Jost
in the case of others in respect of whom no such direction has been issued. At E
any rate, the point not having been taken before the High Court, could not be
allowed to ·be raised for the first time under Art. 136 of the Constitutien.
[936 HJ

CML APPELLATE JURISDICTION: Civil Appeal No. 383 of 1976.
Appeal by special leave from the Judgment and Order dated
12-6-1975 of the Andhra Pradesh High Court in Writ Appeal No. 313 F
of 1975.
Connected with
Civil Appeal Nos. 1434-85/77, 2669/79 & 2670/79, 1763-1781/
77, 2511, 2625, 2679, 2776/77, 332, 333, 909 & 930/78 and S.L.Ps.
1768-70/76, 1769/77, 4246, 4379/77 and 251/79. G
P. Rama Reddy, G. S. Narayana and G. N. Rao for the Appellant
in all the matters .
•
B. Parthasarthy for the Respondent in CAs 383/76, 1443/77,
1444/77 (for R. 5), CA 1456/77 (for RR. 2 & 4), CA 1461/77 for
( R.17), CA 1463/77 for RR-1 & 2 and R. 10 in CA 1464/77 for R.1 H
in CA 1466/77 for R.1, 1468/77 for both the Respondents, 1470/
77 for R. 1, CA 1476177 for R. 2, 1481 for RR, 1767/77 for R. 1,.
932 SUPREME COURT REPORTS [1981] 2 S.C .. R.
A
1768/77 for RR 1, 2, 4, and 5-8, 1773/77 for RR 1-4 and 5 2625/
77 for R 1, 2511/77 for all the Rfu. 132/78 for R.3, 930f78 for
RR. SLP 1769/76 for RR 1-4, 5 & 7.
K. Ram Kumar and Mrs. J. Rarnacha11dran for the RR in CA
1472/77, CA 1473/77 for RR 1-5, 7, 8, 14, 15 and CA 1485 for all
B RRs.
A. Subba Rao in CA 1434 for RRl. 3, 4, 7 .• 8, 9 & 11, in CA
1440/77 for RR 1, 2, 3, 4, 6, 7, 10, 11, 13 & 16, in CA 1457 /77
•'
for Respondent (Sole), CA 1459/77 for RR 2, 3 and 4, CA 1484/77
for RR 1-2, 16-20, 22, 23, 28, 30, 32, 35 and in CA 1764/77 for
Respondent (Sole).
c
G. Narasimhulu for all the Respondents in CA 1781/77.
B. Kanta Rao for RR 1-3 in CA 1441/77, in CA 1442/77 for
RR. 4, 8-11, 14, 15, 23 and 24, in CA 1769/77 for RR 1-35, 37-47,
49-62, 64, 65, 67-79, 81-83, 85, 87, 89, 91-99, 101-104, 106-108,
110-114, 116-117, 119-123, in CA 2670 for RR 1-5, 7-12 and 14-16
D and 19-20 and in SLP 251/79 for RR 1-8.

The Judgment of the Court was delivered by

SEN, J.-This and the connected 81 appeals by special leave and
seven special leave petitions directed against various judgments and
E orders of the Andhra Pradesh High Court and the Andhra Pradesh
Administrative Tribunal, raise a common question: Whether it is per-
missible for the State Government of Andhra Pradesh to enforce sub-r.
(2) of r. 5 of the Andhra Pradesh Revised Scales of Pay Rules, 1969
(hereinafter referred to as 'the Rules') issued by the State Govern-
ment under proviso to Art. 309 of the Constitution. That depends
I<' on whether the Government is competent to withhold the Selection
Grade paj~scales contrary to FR 22(a) (ii) to which the respondents ___ ~
were entitled on their being appointed to Selection Grade posts. The
Government tries to justify such fixation of pay at a lower level than
the minimum of the Selection Grade pay-scales on the basis that it
was to ensure that seniors holding higher posts do not draw in such
G higher posts a pay less than what is drawn by their jun[ors in the
lower posts in the Selection Grade.
The litigative propensities of the Government know no bounds. ,
The Government still assumes that it is within their powers to fix the
pay of the respondents lower than the minimum of the pay scales of
H the Selection Grade posts to which they were promoted although the ~
High Court has unequivocally struck down the impugned. sub:r. (_2)
of r. 5 of th~ Rules as ultra vires the State Government bemg v10lat1ve
CHIEF 5ECY. TO GOVT. OF ANDHRA PRADESH V. CORNELIUS 933
(Sen, J.)
of Arts. 14 and 16 of the Constitution and being contrary to FR 22 A
(a)(ii). It is somewhat unfortunate that the GO\ornment should
have embarked upon this course of action, thereby subjecting thou-
sands of their employees into this fruitless litigation, which is nothing
but an exercise in futility, resulting in wasteful expenditure of public
money. We wish to impress upon the Government that they are in
duty bound to respect the judgments and orders of the" courts pro- B
nouncing upon the constitutional validity of the various rules, orders
and 11otifications issued by the Executive .
• To bring out the point involved, it is newssary to state a few facts.
By G.O. MS. 173, Finance, dated June 13, 1969, the State Govern-
ment issued the Andhra Pradesh Revised Scales of Pay Rules, 1969, c
providing for revision of pay and creation of Selection Grade posts,
the number of such Selection Grade posts for every category being
limited to 15% of the total number of posts in that category with a
view to implement the recommendations of the One-man Pay Com-
mission appointed for the purpose. The Selection Grade scale was
fixed by adding three increments to the maximum of the revised scale D
of pay. The pay-scales for the Selection Grade so fixed were found to
have a higher start than the minimum pay prescribed for the next
higher category of posts. Some of the senior persons holding perma-
nent posts in one category, but holding posts in the next higher cate-
gory on promotion were found to draw less pay in the higher posts as
compared to their juniors in the lower category who were given the E
Selection Grade scale of pay. The Government felt that this would
result in serious discontentment among the senior employees holding
higher posts but drawing less pay than the minimum prescribed for
the Selection Grade in the lower category. At a meeting of the Sec-
retaries to Government held on June 24, 1969, it was decided to set
right this anomalous position, by the issue of an executive order. II
Consequently, the Government issued a departmental instruction in
U.O. Note No. 808/PC/69-I dated July 26, 1969, directing that the
-- 4 -
pay of an employee placed in the Selection Grade shall be so fixed
as not to exceed the pay of his seniors working in the higher post on
promotion. Para 3 (iii) of the U.O. Note was as follows: G
(iii) Since in many cases, the minimum of the 'selection
grade' is higher than the minimum of the next higher grade,
there is a possibility of a junior appointed to 'selection grade'
hereafter drawing more pay than his senior who has already
• been promoted to higher grade. With a view to .tvoid snch
an anomaly, it will be necessary to prescribe that a person H
promoted to a 'selection grade' shall draw the minimum ~f
_,_
•• the remedy was by way of an appeal. That ju<lginent has attamed a ·
934 SUPREME COURT REPORTS [1981] 2 S.C.R.

A promotion category should be drawing less than such mini-
mum his pay shall be limited to the pay being drawn by such
senior, in his own scale.

The direction contained in para 3(iii) of the aforesaid U.O. Note
was struck down by Chinnappa Reddy, J. in S. A. Prabhakar & Ors.
B v. Government of Andhra Pradesh by his judgment dated December
26, 1973, on the ground that the executive instruction could not pre-
vail over FR 22{a) (ii) and secondly, fixation of pay at anything lower
than the minimum of the scale of pay sanctioned for the Selection •
Grade posts was violative of Arts. 14 and 16 and was also contrary
to the Directive Principles of State Policy enshrined in Art. 39 of the
c Constitution, according to which there shall be equal pay for equal
work. The learned Judge was of the view that the Government having
created Selection Grade posts carrying a certain scale cf pay and
having appointed persons to those posts, it was not open to them to
allow that pay to some and deny to others on the ground that their
seniors working elsewhere were not drawing the same scale of pay.
0
The Government preferred a Letters Patent Appeal against the
judgment of Chinnappa Reddy, J., and made a grievance that while

E
the writ petition was pending the offending U .0. Note (No. 808/PC/
69-I dated July 26, 1969) had been substituted by sub-r. (2) of r. 5
of the Rules issued under GO MS 215, Finance, dated September 5,
1973, with retrospective effect from March 19, 1969. That being so,
-
the Division Bench dismissed the appeal observing that the appro-
priate remedy was to file a review petition. Against the judgment of
the Division Bench, the Government preferred a petition for grant of
special leave in the Supreme Court under Art. 136 of the Constitution,
being SLP (Ciy:il) No. 1878 of 1975 and this Court issued a show-
F
cause notice to the respondents on September 28, 1975. But the
Special Leave Petition was ultimately dismissed as withdrawn on Octo-
ber 27, 1978, in view of the fact that a review petition had been
filed.

G Sub-r. (2) of r. 5 of the Rules, inserted by G.O. MS. 215, F1nance,
dated September 5, 1973, reads:

(2) Notwithstanding anything contained in sub-rule (1)
or any other rule relating to fixation of pay, if a person in
any post is promoted or appointed to the selection grade in '
H that post he shall draw the minimum of such selection grade
provided that if any of his seniors, who is promoted or
appointed by transfer to a higher post, draws a pay in that ••
CHIEF SECY. TO GOVT. OF ANDHRA PRADESH V. CORNELIUS 935
(Sen, /.)
higher post less than such minimum, his pay shall be limited A
to the pay so drawn by his senior.
Explanation.-For the PllllPOSe of this sub-rule, a person·
shall be deemed to be a senior tO another even though both
of them belong to two different classes, categories/grades,
provided these-two are sources for promotion or appointment B
by transfer to a higher post.

In D. Krishnamurthy & Ors. v. State of Andhra Pradesh & Anr. (Writ
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 c
of the decision of this Court in B. S. Vadera v. Union of India &
Ors.(') it was settled Jaw 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 D
guaranteed under Part Ill 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 uncon;;titutional.
He was dealing with the case of Deputy Tahsildars in the Nizamabad
District who were promoted to the Selection Grade bnt could not draw E
their pay of Selection Grade because it exceeded the pay of their irr.me-
diate seniors working as Tahsildars, by reason of sub-r. (2) of r.5 of
the Rules. The learned Judges observed that if FR 22(a) (ii) was appli·
cable, nnd 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 F
. -.4 fixed for the Selection Grade of Deputy Tahsildars. According to him,
-sub-r. (2) of r.5 was per se discriminatory because a Deputy Tuhsil-
dar in the Selection Grade with no seniors promoted to a higher post
could draw minimum pay of snch Selection Grade; but a Deputy
Tahsildar in the Selection Grade who unfortunately had a senior iPr<>-
G
moted to a higher post who drew a pay in that higher post which was
less tha.n the minimum of the scale of pay of Selection Grade Deputy
Tahsildar, could not draw more pay than that drawn by his senior, al-
#
' though 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 H
1• put in the words Chinnappa Reddy, J. it amounts to denial of the
(I) [1968] 3 S.C.R. 575.
936 SUPREME COURT REPORTS [1981] 2 S.C.R.

A 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 affid-avit filed by the Deputy
B Secretary to Government of Andhra Pradesh, Finance and Planning
Department {Finance Wing) admits that the judgment of Muktadar, J.,
in Krishnamurthy's 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
c Court involving a similar question h-ad become final, or that the Govern-
ment had lost its right of appeal in other similar matters. We are
really at a loss to appreciate this attitude on the part of lhe Govern-
ment in showing scant respect to the High Court -although the judg-
ments had become final and the point involved was one and the same.
There has been total failure on the part of the Government to reali~e
D that the replacement by sub-r. (2) of r.5 of the Rules, of the executive
instruction contained in the U.0. Note, does nc! cure the constitutional
vice inherent in the governmenl'al action.

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 snb-r.
-
E (2) of r. 5, promoted thousands of their employees to SeJection Gratle
posts in different departments, but fixed their pay at a tPOint lower than
!he pay drawn by their seniors in the next higher grade. There h-ave
been several judgments of the High Court and of the Andhra Pradesh
Administrative Tribunal on writ petitions filed by the persons so
affected.
The Government, instead of following a uniform policy, have re-
fixed 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 c-ase of others on the pretext that the re-fixation would be
done only in the case of ema:iloyees who have secured such directions.
G 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,
H the question does not arise in these appeals. It is quite clear fr,)m the ~
judgments under appeal that the validity of sub-r. (2) of r.S was not in
question. We are constrained!<> o~erve that if the Government wanted
CHIEF SECY. TO GOVT. OF ANDHRA PRADESH V. CORNELIUS 937
(Sen, J.)
to question the correctness of the judgment in D. Krishnamurthy's 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 vire~ the Government as being
violative of Arts. 14 and 16 of the Constitution and as being not in
conformi·ty with FR 22(a) (ii). The effect of the judgment of
Muktad:ir, J., in Krishnamurthy's case (supra) is that sub-r. (2) of 8
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 Govern-
ment in filing these appeals is to retrieve the lost ground which cannot
be permitted.

In the result, the appeals and the specioal leave petitions are dis- C
missed. There shall be no order as to costs.

N.V.K. Appeals & Petitions dismissed.

,
•