Holding

The petitioners, being "other diploma holder engineers", are covered by sub‑para (ii) of Para IV of Notification No. 10303.F and are entitled to be designated Sub‑Assistant Engineers with the Rs.300‑600 pay scale; the State's denial was arbitrary and discriminatory.

Summary

The petitioners were diploma‑holder engineers employed as Operator‑cum‑Mechanics/Electricians in the West Bengal Government on a Rs.230‑425 pay scale. They claimed that sub‑para (ii) of Para IV of Notification No. 10303.F dated 19 Nov 1974, which renamed "other diploma holder engineers" as Sub‑Assistant Engineers, entitled them to the Rs.300‑600 scale. The High Court single judge agreed, but the Division Bench reversed, holding the provision applied only to Overseers, Estimators and Sub‑Overseers already on the higher scale. The State appealed to the Supreme Court, which examined the purpose of the 1974 amendment, the meaning of "other diploma holder engineers", and the alleged arbitrary discrimination. The Court held that the petitioners fell within the said category, that the State’s refusal was arbitrary and violative of Articles 14 and 16, and that the Sub‑Assistant Engineer post is a direct‑recruitment post, not a promotional one. Consequently, the appeals were dismissed and the petitioners were entitled to the higher pay scale.

Issues considered

Whether sub‑para (ii) of Para IV of Notification No. 10303.F, 19 Nov 1974, applies to Operator‑cum‑Mechanics/Electricians who are diploma‑holder engineers and are on the Rs.230‑425 pay scale.
Whether the State Government’s refusal to grant them Sub‑Assistant Engineer designation and the Rs.300‑600 pay scale amounts to arbitrary discrimination violative of Articles 14 and 16 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309
Notification No. 10303.F dated 19 November 1974
West Bengal Services (Revision of Pay and Allowance) Rules, 1970

Subjects

discriminationpay scaleSub‑Assistant Engineerdiploma holder engineersWest Bengal Services RulesArticle 14Article 16arbitrary actioncivil appealArticle 309

Judgment

.
JI/ STATE OF WEST BENGAL AND ORS. ETC .
A
v.
DEBDAS KUMAR AND ORS. ETC.

FEBRUARY 19, 1991

[LAUT MOHAN SHARMA AND M. FATHIMA BEEVI, JJ.l B

West Bengal Services (Revision of Pay and Allowance) Rules
-~ 1970-Schedule I, Part-B and Notification dated November 19, 1974
sub-para (ii) of Part W 3 'Diploma holders in engineering'-Whether to
be termed as Sub-Assistant Engineers and given the benefit of the post

-
and pay scale. ·
.Ji... c
The respondents in these appeals are diploma holder engineers
employed in the various departments of the Government of West Bengal
as Operator-cum-mechanics/Electricians etc. in the pay scale of
Rs.230-425. Consequent upon the amendment of West Bengal Services
(Revision of Pay and Allowances) Rules, 1970 the respondents filed writ D
petitions before the High Court claiming that by virtue of sub-para
(ii) of Para IV of the Notification dated 19.11.74 they are to be termed as
Sub-Assistant Engineers and given the benefit of that post and scale of
pay of Rs.300-600, as they are diploma holders in engineers. It was
asserted by them that the benefit of the said Notification had been given
to similarly situated persons in the other departments of the State E
Government but they had been subjected to discriminatory treatment
•• by denying to them those benefits. The State Government contended
before the High Court that ·sub-para (ii) Para IV of the notification
applied only to Overseers, Estimators and Sub-Overseers already work-
ing in the pay scale of Rs.300-600 and not to Operator-cum-Mechanics/
Electricians etc. whose scale of pay was Rs.230-425. According to the F
State, the said Notification was intended merely to change the designa-
tion of .various technicians and engineers having identical scale of pay
Rs.300-600 to secure uniformity of designation of those employees and
since the recruitment qualification of the respondents was much less
than the diploma in engineering, they were not entitled to be
redesignated as Sub-Assistant Engineers. The learned single Judge of G
the High Court allowed the writ petitions holding that the case of the
respondents fell within the purview of the November 1974 notification
and they were entitled to be termed as Sub-Assistant Engineers. The
State Government preferred an appeal against the said order before the
Division Bench. The Division Bench of the High Court, though held that
sub-para (ii) of para IV of the Notification dated 19.11.1974 could not be H

517
518 SUPREME COURT REPORTS [1991]. 1 S.C.R.

A construed to include the Operator-cum-Mechanics/Electricians, who +
were drawing the pay scale of Rs.230-425, dismissed the appeals with
the observation that the respondents jwrit petitioners should have been
admitted to the benefit of the pay scale of Rs.300-600 long before others
holding the same position as the writ petitioners had been granted the
benefits. The State Government has now filed these appeals after'
B obtaining special leave.

Dismissing the appeals, this Court,

HELD: The reasons for amending the 1970 Rules by the Noti-
fications dated 11.3.1974 and 19.11.1974 was the decision of the
c
Government to remove the anomalies in the existing rule so as to attract
men of quality and also with a view to remove frustration among those
having specialised knowledge of a technical nature. [525C-D]
-
The persons brought under the category of 'other diploma holder
engineers' can only be the persons like the Operator-Cum-Mechanic/
D Electrician with diploma in engineering and working in various depart-
ments in the Engineering Service. [525F]

Clause (iv) of Para IV of the Notification which states that Gazet-
ted status is conferred on the members of the Subordinate Engineering
Services and all sub~Assistant Engineers also relates to these two
E categories, that is, the Overseers, Sub-Overseers. and Estimators who
are already members of the Subordinate Engineering Service and the
'other diploma holder engineers' now termed as Sub-Assistant
Engineering. [525G-H]

There is a concurrent f"mding that these respondents have been
F discriminated and the State Government had acted arbitrarily without-
any rational basis by conferring benefits of the Notification to .17 other ··..n.
employees in other departments while denying the said benefits to the
said respondents in the Agriculture Department. [526E]

Chief Secretary to Government <if A.P. v. Cornelius, [1981] 2
G SCR 930; State of Punjab v. Joginder Singh, [1963] Supp. 2 SCR 169,
referred to. .

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1196
of 1986 with 830 of 1991.

H From the Judgment and Order dated 19 .4 .1985 of the Calcutta
STATE OF W.B. v. DEBDAS [FATHIMA BEEVI, J.] 519

+ High Court in F.M.A.T. Nos. 153of1980 and 326 of 1983.
A
N.S. Hegde, Additional Solicitor General, Tapas Ray, D.K.
Sinha, J.R. Das and D .N. Mukherjee for the Appellants.

P.P. Rao, A.K. Ganguli, Ajit Chakraborty, A. Mariarputham,
Mridula Ray, A.D. Sikri and B.B. Tawakley for the Respondents. B

~ The Judgment of the Court was delivered by

FATHIMA BEEVI, J. The West Bengal Services (Revision cf
,)- PRay a)nd_ allodw~nce) R~les, 1970, (hereinafter referred to as 1970
_. u1es , issue m exercise of the power conferred by the proviso to
Article 309 of the Constitution of India, vide Notification No. 5212.F c
dated 30th December, 1970 on the basis of the Pay Commission
-_., Report specified the revised scales of pay of the government employees
· in various departments with effect from 1st April, 1970. Schedule I of
the 1970 Rules relates to services generally.
D
The G,wernment of West Bengal issued Notification No.
10303.F dated 19th November, 1974, amending the 1970 Rules. The
Notification material for the purpose of these cases is set out below:

"NOTIFICATION
E

-
No. 10303.F, Dated the 19th November, 1974.

In exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India, the Governor is
pleased to direct that the following amendment shall be
made in the West Bengal Services (Revision of Pay and F
Allowance) Rules, 1970, Published with Finance Depart-
ment Notification No. 5212.F, dated the 30th December.
1970, as amended from time to time, namely:

AMENDMENTS
G
In Schedule I, Part-B, to the said rules, the following
amendments shall be made:

1. In the cadre of Assistant Engineers under differ(!nt De-
partments, the Intermediate Selection Grade shall be at 15
per cent of the Cadre in the scale as shown in Cclumn (3) of H
the Schedule.
520 SUPREME COURT REPORTS [1991] i S.C.R.

II. In departments/offices having services/posts as shown+
in Column (i) in the scale as sh.own in Column (2) of the
Schedule, there shall be no Intermediate or New Selection
Grade as the case may be at 10 per cent of the services/
posts (except in the cadre of Assistant Engineer) in the
scale as shown in Column (3) of the Schedule.

III. From 1st August 1974, the New/Intermediate Selec-
tion Grade shall be raised to 15 per cent, from 10 per cent. ~

IV. (i) Sub-Assistant Engineers having Engineering
Degree shall have an initial start in the existing scale of
c Rs.300-600 at the stage of Rs.360 per month. They will also
get the benefit of age relaxation for direct recruitment
either through the Public Service Commission or for ad hoc
appointments.
-
(ii) All Test Relief Overseers and other diploma holder
D· Engineers will' henceforth be termed as Sub-Assistant
Engineers.

(iii) Sub-Assistant Engineers with L.E.E. who have
supervisor's licence from the Commerce and Industries De-
partment will get a qualification pay ofRs.50 per month. ~

(iv) Gazetted status is hereby conferred on the members of
the Subordinate Engineering Services and all Sub-Assistant
Engineers.

V. The existing scale, namely Rs.375-10-415-15-610-20-
f 650 prescribed for the members of the non-gazetted Health
Service having M.B.B.S., or M.M.F. qualifications shall be....-7-,
changed to Rs.375-10-415-15-610-20-650 (E.B. after 8th
and 18th stages) higher initial start at Rs.450.

VI. All Licentiate Medical Officers in the West Bengal
G Health Service (Non-Gazetted) who have completed 10
years of service shall be eligible for appointmep.t in the
West Bengal Health Service (Gazetted) within the existin~,
cadre strength of the basic grade provided they are found
suitable for the basic grade in consultation with the Public
Service Commission.
H -
STATE OF W.B. v. DEBDAS [t<'ATHIMA BEEVI, J.) 521

VII. The New or Intermediate Selection Grades sanc-
A
tioned above shall be admissible after 10 years of service in
the grade next below.

VIII. Unless otherwise stated above and in the Schedule;'
these amendments shall be deemed to have come into
effect from 1st day of March, 1974. B

,L IX. The Notifications bearing No. 2194.F, 2195.F and
2197, dated the 11th March, 1974, stand cancelled.

X. No prior consultations with the Public Service Commis-

- .)....
sion shall be necessary for making appointments to New/
Intermediate Selection Grades sanctioned in this Notifi-
cation."
c

'Y The said Notification contained a Schedule. The relevant items
dealing with Engineering is provided as follows:
D
SCHEDULE

Service/ Existing scale New/Intermediate
Posts Rs. Selection
1-. Grade Rs.
E
1. Engineering

- Services/Posts.
i) Assistant 475-30-685-35-1000- 825-50-875-60-1415.
Engineer 50-1150, with selection
grade for 5 per cent of
F
~ the cadre on
1150-50-1350.
ii) Executive 825-50-875- 1535-60-1775.
Engineer 60-1475,
iii) Sub-Assistant 300-10-430-15-600 560-20-700-25-
G
Engineer with higher initial 825(a).
~·
start at Rs.330/-.

The respondents in Civil Appeal No. 1196 of 1986 and the
respondents in the other Civil Appeal arising out of S.L.P. (Civil)
No. 5298 of 1987 are diploma holder engineers employed in various H
522 SUPREME COURT REPORTS [1991] 1 S.C.R.

A departments of the Government of West Bengal in the post of
Operator-cum-Mechanics/Electricians etc. in the scale of pay of
Rs.230-425. These respondents filed two writ petitions bearing
No. C.R.. Nos. 6053(W) of 1978 and C.R. No. 6593(W) of 1978 before
the High Court of Calcutta, claiming that by virtue of sub-para (ii) of
Para IV of the Notification No. 10303.F dated 19th November, 1974,
fB the writ petitioners who are diploma holders in engineering are to be
ternied as Sub-Assistant Engineers and given the benefit of that post
and the scale of pay of Rs.300-600. They contended inter alia that the
benefit of the aforesaid Notification was given to similarly situated
persons in the other departments of the Government of West Bengal
and the writ petitioners employed in the Agriculture Department had
c been subjected to discriminatory treatment.

The State Government contended before the High Court that
sub-para (ii) of Para IV of the sa_id Notification applies only to the
-
Overseers, Estimators and Sub-Overseers already holding the scale of "+"'
pay of Rs.300-600 and not to Operator-cum-Mechanics/Electricians
D etc. like the writ petitioners whose scale of pay is Rs.230-425. Accord-
ing to the State, the said Notification was merely one changing the
designation of various techniques and engineers having scale of pay of
"I Rs.300-600 but having different designations and was meant to give
J uniformity of designation to all the aforesaid officials in the same scale
of pay of Rs.300-600. It was also the contention of the State that they ~
E being Operator-cum-Mechanics whose recruitment qualifications is
much less than the diploma in engineerings, the writ petition_ers can-
not or are not entitled to be redesignated as Sub-Assistant Engineers .
. These contentions were repelled by the learned single Judge who by -
judgment dated 19th September, 1979, allowed the writ petitions. In
the judgment, Sabyasachi Mukharji, J., (as he then was) held as
F under:

"Now it is important to emphasise that the said Notifications
covered 'other diploma holder Engineers'. Now, if those who
were engineers or those for whose recruitments qualification
of being engineers was essential there was no necessity to
G indicate that they should be henceforth be termed as Sub-
Assistant Engineers. They -are Engineers, Sub-Assistant or
otherwise, before they were called by the deeming provision ~
of the amended Notifications referred to herein before."

In construing sub-para (ii) of Para IV of the said Notifiq1tion, the
H learned Judge said thus:
STATE OF W.B. v. DEBDAS [FATHIMA BEEVI, J.) 523

"The aforesaid clause in the Notifications can only mean,
+- in my opinion, that even though the persons who come A
within the purview of this amended clause of the Notifica-
tion will for the limited purpose of their pay, allowances
and other financial emoluments be termed from the date of
coming into operation or from the mentioned in the Noti~i-
cation of 1974 that is to say from 1st of March, 1974 as B
Sub-Assistant Engineers though they are, in fact, not
j."
\
engineers. That in my opinion, is clear from the language
used."

The learned single Judge noticed that the history preceding the

----
- Notification supported the clear language used and persons holding
different positions became by virtue of the Notification entitled to be
termed as Sub-Assistant Engineers irrespective and independent of
c
whether by fortuitous circumstances some of the incumbents who got
i" the benefits of the said Notification are also qualified engineers. Ac-
cordingly, it was held that the writ petitioners come within the purview
of the Notification for the purpose of the pay-scale and the rule was D
made absolute.

The State Government carried the matter in appeal. The Divi-
sion Bench of the High Court vide judgment and order dated
~- 19.4.1985, however, affirmed the judgment while holding that sub-
para (ii) of Para IV of the Notification dated 19.11.1974 cannot be E
construed to include the Operator-cum-Mechanics/Electricians who

- are holders of diploma in engineering and drawing the scale of pay of
Rs.230-425. The appeal was dismissed with the observation that the
writ petitioners should have been admitted to the benefit of the scale
of pay of Rs.300-600 with higher initial start long before others holding
the same position _as the writ petitioners have been granted the F
)--
. - .........,_ benefits and that great injustice had been done to the writ petitioners
by keeping them in the panel since 1974 without taking any steps for
their appointments to the post of Sub-Assistant Engineers although
others have been appointed to the said post in implementation of the
impugned Notification.
G
Being aggrieved by the appellate judgment, the State has moved
1- this Court under Article 136 of Constitution. Leave is granted in
S.L.P. (C) No. 5298 of 1987.

The main contention urged on behalf of .the appellants is two-
fold. It is contended that the Division Bench having come to the H
524 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

specific conclusion that the Notification in question is not applicable to -.+
A
the respondents herein, the writ petitions ought to have been dismis-
sed. The further contention is that the appointment of 17 other
persons without considering the case of the respondents even if irregu-
lar cannot be the basis for making the Notification applicable to the
respondents.
B
Before considering these propositions put forward by Mr. A
Hegde, Addi. Solicitor General, appearing for the appellants, we shall
dispose of the preliminary objection raised by Mr. P.P. Rao, counsel
for the respondents. It was pointed out that no appeal has been prefer-
red by the State of West Bengal against the judgment dated 25.6.1982 - - -
c
in the case of Ranjit Kumar Ghosh & Ors. v. The State of West Bengal
& Ors., being C.R. No. 923 (W) of 1980, granting similar relief and
that the rule of law has become final so far as that matter is concerned.
-
Relying on the decision of this Court in Chief Secretary to Govt. A.P. "+"
v. Cornelius, [ 1981] 2 SCR 930, it was argued that the State cannot
agitate the case of only few others. It is not disputed that tbe judgment
D against which no appeal has been preferred is only based on the judg-
ment in the main case which is now pending before us for considera-
tion. This Court in State of Punjab v. Joginder Singh, [1963] Supp. 2
SCR 169, where a similar objection was raised overruled the same
observing at page 177 thus:

E "In our opinion, the true position arising, if the present
appeal by the State Government should succeed, would be
that the finality of the orders passed in the other three writ
petitions by the Punjab High Court would not be disturbed
and that those three successful petitioners would be enti-
-
tled to retain the advantages which they had secured by the
F decision in their favour not being challenged by an appeal ;
being filed. That however would not help the present--3"
respondent who would be bound by our judgment in this
appeal and besides, so far as the general law is concerned
as applicable to everyone other than the three writ petitio-
ners (who would be entitled to the benefit of decisions in
G their favours having attained finality), the law will be as
laid down by this Court. We therefore overrule the prelimi-
nary objection." ~

It appears that this pronouncement was not noticed in Cornelius
case (supra) where the facts were also not identical. We have, there-
H fore, no hesitation in overruling the preliminary objection.
STATE OF W.B. v. DEBDAS [FATHIMA BEEVI, J.] 525

The appellants, in our opinion, cannot however, succeed on the
merits. The basis of. the respondents' claim is that they are diploma A
holder engineers who are to be designated as Sub-Assistant Engineers
for the purpose of the revised pay-scale by virtue of the Notification
dated 19th November, 1974. The learned single Judge had construed
the expression 'other diploma holder engineers' in clause (ii) of Para IV
of the said Notification as covering persons like the respondents who B
are holders of diploma in engineering. The Division Bench in holding a
contrary view overlooked the fact that the posts of Overseers,
Estimators and Sub-Overseers were already covered under the cate-
gory of Sub..Assistant Engineers even under the unamended rules and
were in the pay-scale of Rs.300-600 whereas the respondents holding

- the post of Operator-cum-Mechanics/Electricians were diploma
holder engineers in the scale of pay of Rs.230-425. As noticed by the
learned single Judge, the reasons for amending the 1970 Rules by the
c
Notifications dated 11.3.1974 and 19.11.1974 was the decision of the
Government to remove the anomalies in the existing rule so as to
attract men of quality and also with a view to remove frustration
among those having specialised knowledge of a technical nature. This D
factual background was not considered by the Division Bench while
considering the scope of the amended provisions. The appellants ad-
mitted that in 1970 the pay-scale of Overseers and Sub-Overseers was
revised and both Overseers and Sub-Overseers were brought within
the scale of Rs.300-600. The Division Bench has recorded a finding to
the effect that the Overseers, Estimators and Sub-Overseers were E
already included in the categories of Sub-Assistant Engineers under
Schedule I Part-B of the 1970 Rules even before the same was
amended by the Notification.

The persons brought under the category of 'other diploma holder
engineers' can only be the persons like the Operator-cum-Mechanic/ F
Electrician with diploma in engineering and working in various depart-
ments in the Engineering Service, It is to be noticed that the respon-
dents have been absorbed in the posts of Operator-cum-Mechanii.:s
after having attended to the training sponsored under the scheme
'Training of Educated Unemployed Youths' in the operation of river
lift, deep tubewells and shallow tubewells etc. Clause (iv) of Para IV of G
the Notification which states that Gazetted status is conferred on the
members of the Subordinate Engineering Services and all Sub-Assistant
Engineers also relates to these two categories, that is, the Overseers,
Sub-Overseers and Estimators who are already members of the Subor-
dinate Engineering Service and the 'other diploma holder engineers'
now termed as Sub-Assistant Engineers. H
526 SUPREME COURT REPORTS [1991] 1 S.C.R.

It has been contended for the appellants that by construing the '-,f-
A Notification as including Operators-cum-Mechanics in the lower time
scale as Sub-Assistant Engineers and giving them a higher scale, there
would be a division amongst the Operators-cum-Mechanics in the
matter of their pay-scale and such an anomly would not have been
contemplated by the rule makers. There is no force in this contention.
B It is well-settled that difference in pay of employees belonging to the
same cadre post or educational qualification is constitutionally valid
and permissible and is not violative of Articles 14 and 16 of the ,A.
Constitution. The post of Sub-Assistant Engineer is a direct recruit-
ment post. It appears that the Division Bench assumed that the post of
Sub-Assistant Engineers were ultimately a promotional post for the
Operators-cum-Mechanics through intermediary promotions in inter-
c mediary grades. This is incorrect. Under the Rules, the post of Sub-
Assistant Engineers is not at all a promotional post for any categories
of employees in the State, on the contrary, it is a direct recruitment
-~
-
post. It is not contested that 17 other employees similarly placed as the 't"
respondents herein were given the benefits of the said amended Notifi-
D cations and were conferred both status of Sub-Assistant Engineers and
also the pay-scale thereof for the reason that they were also diploma
holder engineers though they were not in the pay-scale of Rs.300-600.
This is a concurrent finding that these respondents have been discri-
minated and the State Government had acted arbitrarily without any
rational basis by· conferring benefits of the Notification to 17 other -~
E employees in other departments while denying the said benefits to the
said respondents in the Agriculture Department.

It has been brought to the notice of the Court that the Operators-
cum-Mechanics would be. absorbed in the existing vacancies in the
-
category of Sub-Assistant Engineers sinte __injustice had been done to
F the respondents by keeping them in the panel since 1974 without tak-
ing any steps for their appointments as Sub-Assistant Engineers along 'A
with others when such appointments were made and the assurance
made before the Court. The fact that in implementation of the judg-
ment of the learned single Judge, the respondents have already been
admitted to the benefits of the amended Rule, is an additional reason
G for this Court not to interfere with the impugned judgment.

We are, therefore, of the view that both the civil appeals have ~-
only to be dismissed. We do so accordingly. The parties are directed to
bear their respective costs.

Y.L. Appeals dismissed.

'