Parminder Kaur and Others v. Hotel Corporation of India and Ors.

14. Further, on 23rd March 2017, the respondent no.1 gave an interim relief to all its permanent employees, w.e.f. 1st January 2017, and accordingly, issued a letter dated 5th July 2017, to the respondent no. 3, for implementation of the said interim relief. On 3rd August 2017, fresh guidelines were issued (hereinafter “2017 Guidelines”) for revision of pay w.e.f. 1st January 2017.

15. The petitioners made representation on 12th September 2019, to respondent no. 1 for revision of pay but to no avail. Aggrieved by the inaction of the respondents in granting the revised pay to the petitioner, the petitioners have approached this Court under its extraordinary writ jurisdiction.

16. The petitioners filed the petition on the ground that they have not received revised pay since 1997 despite the non-unionised employee of the respondent no.1 has been given such revised pay and there is violation of the legal right of the petitioners. The respondents filed counteraffidavit in this regard and submitted that the respondent no. 1 is not in a good financial condition and running in losses, therefore will not be able to bear the revised pay of the petitioners. It further asserted that the revision of pay is not a vested right of the petitioners and that the petitioners being of different class cannot claim parity wih non- unionised employee.

17. The petitioner filed its rejoinder vehemently opposed the contentions of asserted by the respondent and submitted that the ground pertaining to financial condition of the respondent no. 1 is false and submitted that the petitioner is hiring employees, therefore, it has the capacity to for the revised pay of the petitioners.

18. Learned counsel appearing on behalf of the petitioners submitted that the 2008 Guidelines and 2017 Guidelines issued by the respondent no. 4 for the revision of pay from the year 2007 have not been implement yet and the same is wrong and arbitrary in nature..

19. It is further submitted that the petitioners were compelled to discharge their services as per the 1997 pay scale till their superannuation, and thus, are subsequently entitled to the revision of pay along with the consequential benefits in terms of gratuity and pension under the Employees Pension Scheme, 1995, from January 2007 onwards. It is submitted that the petitioners in the present batch of petitions retired between the years 2011 to 2020, and accordingly, are eligible for the revision of pay scale in terms of the 2008 Guidelines and 2017 Guidelines, as applicable to them and in accordance with their respective retirement dates.

20. It is contended that no revision of pay for the petitioners since 1st January 1997, and omission of two revisions for unionised workers, have resulted in the unionised employees (who are otherwise of lower grade as compared to the petitioners) are drawing more salaries than the petitioners.

21. It is vehemently contended by the learned counsel appearing on behalf of the petitioners that the revision of pay of the unionised workers of the respondent no. 1, and non- revision of pay scales of the below Board level executives, is discriminatory in nature and violative of the right of the petitioners under Article 14 of the Constitution of India.

22. The counsel appearing on behalf of the petitioners has placed reliance on the judgment passed in Union of India & Ors. v Delhi Judicial Service Assn. & Anr.,1995 Supp (2) SCC 343, Gurcharan Singh Grewal & Anr. v Punjab State Electricity Board & Ors. (2009) 3 SCC 94, UB Singh & Ors. v. Union of lndia & Ors. 2006 SCC OnLine All 1672 and Amar Kumar Barik v National Instruments Ltd. 2009 SCC OnLine Cal 2267, to buttress its argument that a senior employee cannot be paid a salary lesser than its junior employee.

23. It is submitted that despite the approval of the Board of the Management of the respondent no. 1, no approval regarding the revision of the pay scale was granted by the respondent no. 3.

24. It is submitted that the petitioners were assured by the respondent no. 1 that the revision of pay was in the process of being implemented and pursuant to such implementation, all the petitioners would receive their arrears along with the consequential benefits w.e.f. 1st January 2007. The respondent, in fact, tried to deceive the petitioners by these assurances, which were nothing but merely false hopes.

25. It is further submitted that as per the Minutes of the Meeting dated 25th March 2019, which was chaired by the Chief Managing Director of the respondent no. 2, the officer’s welfare association of members of the respondent no.1 was assured that the wages of the petitioners i.e., the non- unionised employee would be revised post the implementation of revised wages of unionised employees of the respondent no.1.

26. It is contended that the petitioners have been treated discriminatorily and unfairly by the respondent no. 1.

27. It is submitted that since the last pay revision on 1st January 1997, till the retirement of petitioners (which retired in the period of 2011 to 2020), they have been working at the outdated pay scale of 1997. The respondent no. 1 has acted wrongfully by not considering the financial needs of the petitioners which increased in due course of time due to various factors, especially, inflation.

28. In view of the forgoing submissions, the counsel for the petitioners prays that the petitions may be allowed, and the reliefs, as sought by the petitioners, may be granted. (On behalf of the respondents)

29. Per Contra the learned counsel appearing on behalf of the respondents vehemently opposed the instant petition and submitted that at the outset, the same is not maintainable, and hence, is liable to be dismissed.

30. It is submitted that the writ may be dismissed on the ground of maintainability of the petition since, the petitioners retired during the period of 2010 to 2017, and thus, there has been a huge delay in filing the same. Hence, the petition is barred by limitation

31. It is submitted that the petitioners in the instant batch matters have prayed for a writ of mandamus for implementation of the revised pay scale. It is submitted by the counsel for the respondent in this regard that the mandamus is issued by the High Court under Article 226 of the Constitution of India only in exceptional cases when there is a legal and vested right of the party before the Court which has been violated by the public authority falling under the definition of “State” as per Article 12.

32. It is further submitted that as per the facts of the instant batch of petitions, the revision of pay scale is not a statutory right of the petitioners, and therefore, there is no violation of any right of the petitioners. Moreover, there is no statutory duty casted upon the respondent No.1 to revise the pay of the petitioners and hence, the same cannot be prayed for by way of issuance of a writ of mandamus.

33. The counsel for the respondents has placed reliance on the following judgments, Punjab State Co-operative Milk Producers Federation Ltd. and Anr. v. Balbir Kumar Walia and Ors., 2021 SCC OnLine SC 461, Chandrashekar A.K. v. State of Kerala, (2009) 1 SCC 73, State of Punjab v. Amar Nath Goyal and ors., (2005) 6 SCC 754, Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd., (2007) 1 SCC 408, and Centaur Hotel Employee Union v. Hotel Corporation of India, 2015 SCC OnLine Del 7277, to buttress the its submission that revision of pay is not a vested right of the employee.

34. It is vehemently contended that the revision of pay is a policy decision of the employer/respondent No.1 and thus, it has the discretion of implementing the same, depending upon several factors and the same cannot be claimed as a matter of right by the petitioners.

35. It is respectfully submitted that as per Clause 3 and Clause 4 of the Office Memorandum dated 26th November 2008, it is stipulated that the CPSEs could only adopt and implement the pay revision, in case there is less than 20% reduction in profit before tax in the period of 12 months for the CPSE. Moreover, as per Clause 16 of the said Office Memorandum further stipulates that the concerned CPSE will have to bear the additional financial implication on account of pay revision from its own resources and that no budgetary support will be provided.

36. It is submitted that the respondent No. 1, since the year 2003, has consistently been making losses, and is in no condition to revise the pay scales of its employees. Furthermore, after the disinvestment of its erstwhile parent company i.e., respondent No. 2, the respondent no. 1 did not even receive any budgetary support from its parent company. Moreover, the respondent no. 3 vide letters dated 12th July 2019, 28th October 2019 and 6th January 2020, had refused to bear the burden of wage revision of the unionized workmen as well as of the officers’ category employees of the respondent no.1.The details of the loss incurred by the respondent no. 1 has been enunciated below: Financial year Losses (Rs.In crores) 2003-04 15.07 2004-05 7.75 2005-06 3.03 2006-07 12.70 2007-08 24.97 2008-09 18.61 2009-10 29.11 2010-11 26.71 2011-12 21.29 2012-13 35.62 2013-14 40.47 2014-15 50.45 2015-16 57.76 2016-17 61.77 2017-18 55.86 2018-19 71.20 2019-20 65.54

37. It is contended that the parity as sought by the petitioners between their pay scale revision to that of the unionized workers is wrong since both fall under separate categories, thus comparison of both is wrong and misleading. Moreover, the wage revision of the unionized workers has been done in compliance with the order passed by the Central Government Industrial Tribunal, Chandigarh. As per the said order the respondent no. 1 was directed to revise the pay scale of the unionized workers.

38. It is submitted that in view of the foregoing contentions raised by the respondent no.1, the instant petition may be dismissed.

FINDINGS AND ANALYSIS

39. The matter was heard at length with arguments advanced by the learned counsels. This Court after perusing the entire material on record has taken into consideration the facts, judicial pronouncements relied on by the parties and pleadings presented by the learned counsel of the parties.

40. The case of the petitioners is that the petitioners superannuated in the year 2010-2020 and are working at the 1997 pay scale since then. Despite the 2008 Guidelines and 2017 Guidelines which were issued for pay revision, the same have not been implemented till date. The petitioners by way of the present batch of petitions seek revision of the pay as per the 2008 Guidelines and 2017 Guidelines along with the consequential benefits.

41. Now, this Court will adjudicate upon the following issues-

1. Whether the instant writ is barred by limitation?

2. Whether the writ of mandamus may be issued by this Court to the respondent no. 1 for revision of pay of the petitioners ?

3. Whether the petitioners can claim parity with the unionised employees in terms of revision of pay?

42. This Court will now deal with the first issue – Whether the writ is barred by limitation?

43. The respondent has contended that the petitioners have retired between the period of 2010-2016, therefore, the writ filed in the year 2020 is barred by limitation.

44. It is a settled position of law that there is no limitation provided for filing of the writ petition, however, the party should approach the Court in a reasonable amount of time. Moreover, in case a reason which the Court deems fit for the delay in filing of the writ petition, then the High Court under Article 226 may hold that there is no delay in filing the said petition.

45. The Hon’ble Supreme Court in NDMC v. Pan Singh, (2007) 9 SCC 278, enunciated upon the aspect of limitation period in filing of the writ petition. The relevant paragraphs are as follows: “17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India [(1994) 6 SCC 524] and M.R. Gupta v. Union of India [(1995) 5 SCC 628: 1995 SCC (L&S) 1273: (1995) 31 ATC 186].)

18. In Shiv Dass v. Union of India [(2007) 9 SCC 274: (2007) 2 Scale 325: (2007) 1 Supreme 455] this Court held: (SCC p. 277, paras 9-10)

46. The petitioners had a reason for delay in approaching the Court and the said reasoning of the petitioners is sound and logical, hence there is no such unjustifiable delay in approaching the Court. Therefore, the instant petitions are not barred by the limitation and cannot be dismissed on ground of delay and latches.

47. This Court is of the view that there is no unreasonable delay as such caused in approaching this Court under Article 226, by the petitioners since, the petitioners were assured by the respondent no. 1 that their pay will be revised post the revision of pay of the unionised workers. Hence, the petitioners were justified in waiting for a certain time period before approaching this Court

48. Hence, issue no. 1 is decided and it is held that the writ petition is not barred by limitation.

49. Now adverting to the next issue i.e., issue no. 2 -whether the petitioners are entitled for pay revision by issuance of writ of mandamus by this Court?

50. In the present case, this Court has to adjudicate upon whether revision of pay is a statutory right of the petitioners or not. It is the case of the petitioners’ counsel that the petitioners’ pay scale has not been revised after the year 1997. They have worked from the year 1997 till their superannuation i.e., between the period ranging from 2010 to 2017, at the same pay scale which was fixed in the year 1997.

51. The counsel for the respondents vehemently argued that the revision of pay is not a vested right of the petitioners. Moreover, the respondents brought to the attention of this Court, the poor financial condition of the respondent no.1, i.e., where the petitioners were employed, submitting to that effect that it is running in losses for many years and does not have the capacity to revise the pay of the petitioners. Being a CPSE, it has to bear its own financial burden since it gets no financial support from the respondent no. 3 or respondent no. 4.

SCOPE OF ISSUING MANDAMUS

52. Mandamus is one of the prerogative writs issued by the High Court or the Supreme Court in the manner of command to any authority that falls under the definition of “State” as per Article 12 of the Constitution of India for the purpose of fulfilling their constitutional/ statutory/ public duty. It is used as a last resort in cases where the Court is satisfied that without its intervention there will be denial to justice to the party invoking such writ.

53. For issuance of writ of mandamus, the petitioner has to establish that the petitioner has a vested right and the public authority has violated such vested right of the petitioner. There is a corresponding legal duty of the pubic authority, which could be enforced by way of issuing writ of mandamus. Such legal duty is casted upon the public authority by way of a statute or common law. The said duty has not been done by the public authority. Moreover, the party approaching this Court seeking mandamus has claimed such relief with a bonafide intention and does not have any alternative remedy.

54. The Court has to be very hyper vigilant while issuing a writ of mandamus since the writ of mandamus is an extraordinary remedy to be invoked only upon special occasions and in exceptional circumstances. It is invoked to supplement the deficiency in law, if any, and cannot be invoked as an appellate mechanism against the decision of any Court, Tribunal, or Authority which is exercising statutory power. The writ of mandamus is an invincible weapon in cases, where there is a failure of justice or exercise of power in an illegal way or arbitrary manner.

55. The above-stated principle governing the issuance of mandamus by the Courts under its writ jurisdiction has been recently recapitulated by the Hon’ble Supreme Court in the judgment of Hero Motocorp Ltd. v. Union of India, (2023) 1 SCC 386 as follows:

76. It could thus be seen that this Court holds that a writ of mandamus can be issued where the Authority has failed to exercise the discretion vested in it or has exercised such a discretion mala fide or on an irrelevant consideration.

77. This position was again reiterated by this Court recently in Bharat Forge [Union of India v. Bharat Forge Ltd., (2022) 17 SCC 188: 2022 SCC OnLine SC 1018] as follows: (SCC paras 18-19)

56. In light of the aforementioned judgment, the scope of the mandamus has been expounded very perspicuously. Therefore, now for adjudicating upon the present issue, this Court will examine whether the revised pay is a vested right of the petitioners i.e., employee of a CPSE.

WHETHER REVISED PAY IS A VESTED RIGHT/ LEGAL RIGHT OF THE PETITIONERS

57. It is a settled principle of law that the revised pay cannot be claimed as a right by the employees. The decision to revise the pay scales of the employees vest with the public authority/employer. The High Court under Article 226 of the Constitution of India, in its writ jurisdiction, cannot adjudicate upon the fact whether there should be revision of the pay. Such discretion vests with the employer, since the employer knows what is best for it. There is no straightjacket formula for the pay revision, however, the authority has to take into account the interest of the employees, financial condition of the public authority, the interest of the public at large since it’s a public authority, etc.

58. The Court does not sit as an appellate mechanism over the said decision of the public authority. Courts must restrain from intervening in such executive policy decisions of the public authority therefore, there is a limited scope for interference by the High Courts. Under Article 226, the Courts may intervene in exceptional cases, where there is a gross violation of the rights of the parties such as two employees in the same category are not getting the same benefits hence, the party before the Court is seeking equal pay for equal work or a decision by the public authority is unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.

59. The aforesaid principle regarding whether revision of pay is a legal/vested right and has been discussed in a catena of judgments. The said judgments are discussed herein below.

60. The Hon’ble Supreme Court in the judgment of A.K. Bindal v. Union of India, (2003) 5 SCC 163 held as follows:

19. The contention that economic viability of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees, does not appeal to us. The question of revision of wages of workmen was examined by a Constitution Bench in Express Newspaper (P) Ltd. v. Union of India [AIR 1958 SC 578] having regard to the provisions of the Industrial Disputes Act and the Minimum Wages Act and the following principles for fixation of rates of wages were laid down: (AIR p. 605, para 73) “(1) that in the fixation of rates of wages which include within its compass the fixation of scales of wages also, the capacity of the industry to pay is one of the essential circumstances to be taken into consideration except in cases of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity; (2) that the capacity of the industry to pay is to be considered on an industry-cum-region basis after taking a fair cross-section of the industry; and (3) that the proper measure for gauging the capacity of the industry to pay should take into account the elasticity of demand for the product, the possibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest-paid workers resulting in increase in production considered in conjunction with the elasticity of demand for the product — no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business.” (emphasis supplied)

20. The same question was again examined in Hindustan Times Ltd. v. Workmen [AIR 1963 SC 1332] and the Court recorded its conclusion in the following words in para 7 of the Report: (AIR p. 1336)

61. The above said principle was further elucidated by the Hon’ble Supreme Court in the judgment of Officers & Supervisors of I.D.P.L. v. Chairman & M.D., I.D.P.L., (2003) 6 SCC 490 and it was held as follows:

17. In A.K. Bindal [(2003) 5 SCC 163: 2003 SCC (L&S) 620] this Court specifically held that the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves. The Court also negatived other contentions raised by the employees and referred to and relied upon the fact that the company was a sick unit. Facts of the present case are similar.

18. Further, directions issued in Jute Corpn. of India Officers' Assn. [(1990) 3 SCC 436: 1991 SCC (L&S) 58] would have no bearing in the present case as the scheme under the SICA has failed to revive the Company. When the company cannot be revived because of large losses, there is no question of enhancing scales of pay and dearness allowances. Direction (ii) issued in that case indicates that the employees appointed on or after 1-1-1989 will be governed by such pay scales and allowances as may be decided by the Government in its discretion. If the company itself is dying, the Government has discretion not to grant enhanced pay scales or dearness allowances and for the same reason Direction (i) cannot be implemented."

62. The Hon’ble Supreme Court in the judgment of Chandrashekar A.K. v. State of Kerala, (2009) 1 SCC 73, further held that the revision of pay scale in not a vested right and the same has been reiterated herein below:

63. In light of the aforementioned judgments, it is a well-settled law that the revised pay is not a legal right of the employees of the public authority. Instead the same is a discretion in the hands of the public authorities, which is exercised by them after taking into consideration plethora of factors.

64. The public authority being a “State” and discharging public functions has to take into account the various interests and balance out the same. They have to also act in a way that they are able to sustain themselves too and hence, the Court may exercise limited judicial restraint in this regard as the public authorities usually act in the best interest of everyone’s interest.

65. Now this Court will examine the issue of whether financial constraints of the employer are taken into account for deciding upon the revision of pay scale of the employee.

WHETHER FINANCIAL CONSTRAINTS OF THE EMPLOYER IS A RELVANT FACTOR FOR REVISION OF PAY

66. It is the case of the respondents that the respondent no.1 itself may not be able to function if such revision of pay is granted since, there is a paucity of funds and may have to close down which will inevitably have disastrous consequences for the employees themselves. Hence, in view of the fact that respondent no. 1 has been running in losses and is not in a position to sustain itself it cannot grant revision of pay to the petitioners.

67. The basis of the formation of CPSEs are self- sustaining units, they are made with the intention to be an autonomous unit and operate without any financial support from its parent organization. In case such units are not able to sustain themselves, then such units cannot grant revision of pay to its employees. The financial health of the CPSE is one of the key determinants in granting of revision of pay.

68. The principle governing the financial condition of an organization is a key factor for deciding the revision of pay and the same has been dealt by the Hon’ble Supreme Court in the judgment of State of Maharashtra v. Bhagwan, (2022) 4 SCC 193, wherein the following was observed: “14.6. Relying upon the decision of this Court in State of Kerala v. Naveena Prabhu [State of Kerala v. Naveena Prabhu, (2009) 3 SCC 649: (2009) 1 SCC (L&S) 759], it was submitted by Shri Mehta, learned Solicitor General that in financial matters court would abstain from issuing directions having financial implications. It was submitted that the court would not generally interfere with a Government's policy decision.

14.7. It was further urged that in the present case, the High Court has not at all considered the financial implications on extending the pensionary benefits to the employees of WALMI. It is submitted that the High Court has not at all considered and appreciated the additional financial burden, which will be recurring, if the pensionary benefits are extended to the employees of WALMI.

14.8. It was submitted by Shri Tushar Mehta, learned Solicitor General of India that as held by this Court in a catena of decisions, whether to grant a particular service benefit like pension, etc. should be left to the employer as it will have a financial implication. Reliance was placed on the decisions of this Court in Finance Deptt. v. W.B. Registration Service Assn. [Finance Deptt. v. W.B. Registration Service Assn., 1993 Supp (1) SCC 153: 1993 SCC (L&S) 157]; State of Bihar v. Bihar Secondary Teachers Struggle Committee [State of Bihar v. Bihar Secondary Teachers Struggle Committee, (2019) 18 SCC 301] and Punjab State Coop. Milk Producers Federation Ltd. v. Balbir Kumar Walia [Punjab State Coop. Milk Producers Federation Ltd. v. Balbir Kumar Walia, (2021) 8 SCC 784: (2021) 2 SCC (L&S) 838].”

69. The said principle has been further enunciated in the judgment of Punjab State Coop. Milk Producers Federation Ltd. v. Balbir Kumar Walia, 2021 SCC OnLine SC 461 and the following was held:

28. This Court in a judgment reported as S.C. Chandra v. State of Jharkhand [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279: (2007) 2 SCC (L&S) 897] was examining the question of equal pay for equal work where the claim of the appellants was to release and pay dearness allowance. Hon'ble Markandey Katju, J. in a separate but concurring judgment held that the “Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. …” (SCC p. 290, para 26).

29. In Mineral Exploration Corpn. Ltd. v. Arvind Kumar Dixit [Mineral Exploration Corpn. Ltd. v. Arvind Kumar Dixit, (2015) 2 SCC 535: (2015) 1 SCC (L&S) 526], this Court was dealing with an appeal against an order [Mineral Exploration Corpn. Ltd. v. Arvind Kumar Dixit, 2012 SCC OnLine Bom 1945] of the High Court, which did not interfere with the award of the Industrial Tribunal which had extended the actual financial benefits to the respondents by holding that they cannot be denied benefit of “wage revision” by notional fixation and re-computation of their retiral dues (severance package). This Court referred to A.K. Bindal [A.K. Bindal v. Union of India, (2003) 5 SCC 163: 2003 SCC (L&S) 620] and Officers & Supervisors of I.D.P.L. [Officers & Supervisors of I.D.P.L. v. I.D.P.L., (2003) 6 SCC 490: 2003 SCC (L&S) 916] to accept the argument of the appellant that if the wage revision office order is interpreted to include all the employees who were superannuated/voluntarily retired between 1-4-1997 to 1-4- 2003, it would frustrate the measures taken, including the Voluntary Retirement Scheme, to improve the condition of public sector undertaking. The Court thus upheld the cut-off date in view of the financial constraints faced by the appellant.

30. In the third category of cases, in respect of Central or State Government, the factor of financial constraints has been found to be relevant when the liberalised benefits were granted from a particular date. In Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754: 2005 SCC (L&S) 910], the question examined was whether limiting of benefits only to the employees who retired or died on or after 1-4-1995 after calculating the financial implications was irrational or arbitrary, the Court held as under: (SCC p. 763, para 26)

executive and financial capacity of the Government is also a relevant factor to be considered, though on facts, it was held that the employees of the University were entitled to revision of pay on a par with the employees of the State. It was held as under: (SCC pp. 411-12, para 13)

70. In view of the aforementioned judgments, it is held that the revision of pay is not a right vested with the employees of a public authority especially in the case where the said public authority is running into losses or financially is not in a position to grant such kind of revision of pay. The public authority has to take into consideration various interests apart from the interest of its employee before granting such revision of pay to its employee and it has to balance out all the interest and accordingly, take a decision for revision of pay.

71. The public authorities are clothed with such a power since it’s the said public authority who knows the best about how to successfully run itself. It has the power to take executive policy decisions. Moreover, there is limited judicial intervention that can be excercised by the Courts under its writ jurisdiction in entertaining writs pertaining to challenging the said policy decisions of the public authorities.

72. Furthermore, the Hon’ble Supreme Court in the judgment of Union of India v. T.V.L.N. Mallikarjuna Rao, (2015) 3 SCC 653, dealt with the aspect of limited judicial intervention in the policy decision of the executive and held as follows: “27. The Government on consideration of the report submitted by the Committee issued Office Memorandum dated 11-9-1989 prescribing therein different pay scales and different grades of Data Entry Operators besides the mode and manner of recruitment to and qualifications for each entry grade post as well as eligibility and experience for promotional grades. The Court or the Tribunal, in our opinion, would be exceeding its power of judicial review if it sits in appeal over the decision of the executive in the matter of prescribing the pay structure unless it is shown to be in violation of Articles 14 and 16 of the Constitution of India. Difference in pay scales based on educational qualifications, nature of job, responsibility, accountability, qualification, experience and manner of recruitment does not violate Article 14 of the Constitution of India.

30. In Mewa Ram Kanojia v. All India Institute of Medical Sciences [(1989) 2 SCC 235: 1989 SCC (L&S) 329: (1989) 10 ATC 51] this Court has inter alia held as follows: (SCC pp. 239 & 241, paras 5 & 7) “5. While considering the question of application of principle of „Equal pay for equal work‟ it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality. ***

7. Even assuming that the petitioner performs similar duties and functions as those performed by an Audiologist, it is not sufficient to uphold his claim for equal pay. As already observed, in judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifications, qualitative difference and the measures of responsibility prescribed for the respective posts. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of „equal pay for equal work‟ would not apply.”

31. It was further reaffirmed in a three-Judge Bench judgment of this Court in Shyam Babu Verma v. Union of India [Shyam Babu Verma v. Union of India, (1994) 2 SCC 521: 1994 SCC (L&S) 683: (1994) 27 ATC 121] wherein the Court held: (SCC p. 525, para 9) “9. … The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of „equal pay for equal work‟ should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of „equal pay for equal work‟ to them. The principle of „equal pay for equal work‟ has been examined in State of M.P. v. Pramod Bhartiya [(1993) 1 SCC 539: 1993 SCC (L&S) 221: (1993) 23 ATC 657] by this Court. Before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. Then only it can be held that there has been a discrimination, within the meaning of Article 14 of the Constitution.”

73. Now before discussing the instant petition on merits, this Court refers to a judgment passed by the Coordinate Bench of this Court where a similar issue pertaining to the revision of the pay of the non- unionised employee of the same CPSE i.e., respondent no. 1 was dealt with in the judgment of Centaur Hotel Employee Union v. Hotel Corporation of India,2015 SCCOnLine Del 7277, wherein it was held as follows:

7. I may also state that there is no law that pay-scales which are granted to the Central Government Employees or the State Government Employees, the same pay structure has necessarily to be granted even to the autonomous organizations either of the Central Government or of the State Government. Courts cannot step in for fixing of payscales of employees of an organization because the organization knows best as per its circumstances and financial conditions as to what should be the pay-scales of its employees and which pay-scales are fixed as per the decisions of the parent ministry of the organization with the consent of the Ministry of Finance. Therefore, in view of the ratio of the judgment of the Hon'ble Supreme Court in the case of Indian Drugs and Pharmaceuticals Ltd. (supra), this Court cannot order fixing of particular pay revision as claimed by the petitioners.

8. Similarly, claim to other monetary reliefs which are not in terms of any service rules of the respondent/employer ie reliefs for grant of any monetary emoluments, the same cannot be granted to the petitioner following the ratio of the judgment in the case of Indian Drugs and Pharmaceuticals Ltd. (supra).

9. Dismissed.”

74. Moreover, the issue of revision of pay of the non- unionised employee of the respondent no. 1 has also been decided by the Coordinate Bench of the High Court of Jammu and Kashmir in the judgment Centaur Hotel Officers Welfare Assn. v. Union of India and Others 2022 SCC OnLine J&K 299, wherein it was held as follows:

15. From the foregoing enunciation of law on the subject, it is crystal clear that a loss-making public-sector entity cannot be forced to revise the pay scales of its employees as the employees of a Government company or a corporation, which has a separate entity from the Government itself, cannot equate themselves with the Government employees. It is only if the financial health of the Government Company or a corporation is sound that its employees can claim revision of pay scales.

16. Even the office memoranda, on which the petitioner Association has placed reliance, take due cognizance of the financial health and affordability of the Public Sector Undertakings while recommending pay revision of the employees. Clauses (3), (4) and (16) of the office memorandum dated 26th November, 2008, are relevant to the context and the same are reproduced as under:

17. A perusal of the afore-quoted clauses reveals that revised pay scales have to be adopted subject to the condition that such revision should not result in more than 20% dip in the profit. Clause (16) of the said memorandum further provides that CPSE has to bear the additional financial implications on account of pay revision from their own resources and no budgetary support will be provided by the Government.

18. It has been contended by learned Senior counsel appearing for the petitioner Association that at least 10% to 20% of increase in basic pay plus DA has to be given in terms of Clause (4) quoted above. The argument is without merit as the said increase has to be given with approval of the Ministry and Clause (16) provides that the Government will not provide any budgetary support. In view of this position, the increase of 10% to 20% in pay etc. has to be given from the resources of the Corporation. Since respondents No. 4 and 5 are, admittedly, loss making entities, as such, they cannot be compelled to pay the increased pay scales in terms of Clause (4) to its employees.

19. So far as the office memorandum dated 3rd August, 2017 is concerned, it also contains similar clauses. Clauses (3) and (17) are relevant to the context and the same are reproduced as under: “3. Affordability: The revised pay scales would be implemented subject to the condition that the additional financial impact in the year of implementing the revised paypackage for Board Level executives, Below Board level executives and Non-Unionised Supervisors should not be more than 20% of the average Profit Before Tax (PBT) of the last three financial years preceding the year of implementation.

17. Financial Implications: Expenditure on account of pay revision is to be entire borne by the CPSEs out of their earnings and no budgetary support will be provided by the Government.”

20. A perusal of the aforesaid Clauses clearly show that it is only in case a CPSE is a profit-making entity, it can implement the revised pay package and it is further revealed that no budgetary support will be provided by the Government.

21. In the face of aforesaid clear-cut guidelines provided in the office memoranda, on which the petitioner Association has based its claim, the petitioners cannot claim revision of their pay scales as a matter of right as it is an admitted position that their employer i.e., respondents No. 4 and 5 are running in losses for past several years. Asking respondents No. 4 and 5 to implement the revised pay scale, when Government of India has categorically refused to take share of this financial burden, would lead to closure of these entities. The revision of pay by a Government company or a public sector undertaking is a policy decision which it has to take, after considering various factors which include its financial viability and, of course, the rate of inflation and cost of living. However, rate of inflation and cost of living are not the only factors which are to be considered while taking a decision regarding revision of pay but the financial viability of the company or corporation is equally important while taking a decision in this regard. Respondents No. 4 and 5 have already granted interim relief of Rs. 5000/per month to the officers of the petitioner Association keeping in view their financial viability and the increase in cost of living. Compelling them to revise the pay scales of the officers of the petitioner Association would be detrimental to the interests of respondents No. 4 and 5 as also to the interests of officers of the petitioner Association as it is in nobody's interest to bring the Corporation itself to grinding halt by putting additional burden on its already precarious financial conditions.”

75. The aforesaid judgments have analysed the Clauses of the office memorandum as per which the aspect of the financial condition of the respondent no. 1 was taken into account for the aspect of the revision of the pay of the employee of the respondent no. 1. The Courts accordingly, held that the revision of pay as claimed by the non-unionised employee is not a legal right vested in the favour of an employee, especially given the financial condition of the CPSE i.e. the respondent no. 1 which is running in losses for years.

76. Now adverting to the facts of the present case, the Office Memorandum dated 26th November 2008, which deals with the 2008 Guidelines pertaining to the revision of pay of the Board levels and below Board level executives and non-unionised in CPSEs has been reproduced below: “3. Affordability for implementation of pay revision: - The revised pay scales would be adopted subject to the condition that additional outgo by such revision for a period of 12 months should not result in more than 20% dip in profit before tax (PBT) for the year 2007-2008 of a CPSE in respect of executives as well as non-unionised supervisory staff taken together in a CPSE. CPSEs that cannot afford to pay full package, can implement with either part PRP or no PRP. These CPSEs may pay the full package subsequently, provided the dip in the profit (PBT) is fully recouped to the original level.

4. The CPSEs which are not able to adopt revised pay scales (2007), may give an increase on the basic pay plus DA drawn in the pre-revised scale as on 01.01.2007, with a uniform lower fitment of 10% or 20% depending upon their affordability, with the approval of their Ministry/Department.”

77. On perusal of the aforesaid memorandum, it was directed to the CPSEs including the respondent no.1 that firstly, the CPSEs may adopt the revised pay on the condition that additional outgo by such revision for a period of 12 months should not result in more than 20% dip in profit before tax and secondly, CPSEs which are not adopting the first option may give an increase on the basic pay plus DA drawn in the pre-revised scale as on 1st January 2007, with a uniform lower fitment of 10% or 20%, the same was however, subject to the affordability/financial condition of the said CPSEs adopting the same.

78. In light of the aforementioned office memorandum, this Court is of the view that the respondent no. 1 has committed no illegality or irregularity by non- adoption of the revised pay scale since, the memorandum prescribed that the revised pay scale may be adopted in case the same would not result in dip in profit of more than 20 %, in the present case, the respondent no. 1 which is in losses from many years therefore, could not adopt the revised pay scale for the petitioners.

79. Furthermore, as per the office memorandum, the CPSEs which did not implement the aforesaid revised pay scales was given another option that such CPSEs may give an increase on the basic pay plus DA drawn in the pre-revised scale as on 1st January 2007, with a uniform lower fitment of 10% or 20%, however, the same was subject to the affordability of the CPSEs and as per the factual matrix of this case, respondent no. 1 running in losses is not in a condition to afford the same running in losses from years. Therefore, there is no illegality or wrong committed by the respondent no. 1 in not adopting the same.

80. This Court is of the considered view that the financial condition of an employer has to be looked into for taking decision on the revision of the pay scale of an employee since the respondent no. 1 is running in losses for many years and therefore, petitioners despite the respondent NO. 1 running in losses cannot claim revised pay as their vested right. This Court cannot compel the respondents, by issuing a writ of mandamus for revision of pay since, the same would only put the State’s finances under considerable strain.

81. Under Article 21 of the Constitution of India, the petitioners’ have right to compensation which is minimum wages or fair wages, however, it does not include under its ambit revision of the pay of such wages. Therefore, the public authority merely for the benefits of its employee cannot burden the public exchequer given the fact that the respondent no.1 is already a loss- making unit and public exchequer is already bearing the losses and by such revision of pay, it will only be an additional burden upon it. Such additional burden would have a cascading effect on the public exchequer and this Court is not inclined to pass any such orders.

82. Moreover, this Court has to take into account the aspect of limited judicial restraint that must be exercised by this Court under its extraordinary writ jurisdiction, it shall only intervene in cases where there is an illegality committed by the public authorities or there is such circumstances which apparently at the face of it warrants intervention of the High Court under its writ jurisdiction.

83. Accordingly, issue no. ii is decided by this Court.

84. Now this Court will adjudicate upon the issue no. iii- whether the petitioners being non-unionised can claim parity with the unionised employees in terms of revision of pay?

85. It is the case of the petitioner that the unionised workers have been granted two revision of pay in 1st January 2002, where a hike of 15 % was given and 17th August 2008, a 5% increase on annual increment per year has been given on the other hand, non-unionised employee/ petitioners have not been given any revision in their pay-scale after 1997.

86. The respondent submitted in this regard that the petitioners belonging from different class i.e. non- unionised workers cannot claim parity with the unionised workers. Moreover, there is an award in favour of the unionised workers rendered by the CGIT, Chandigarh for payment of revised wages to the unionised workers of the respondent no.1.

87. The same contention was also raised before the Jammu and Kashmir High Court by the non-unionised employee of the respondent and the Court in the judgment of Centaur Hotel Officers Welfare Assn.(Supra) held as follows:

88. It is a settled law that the parity can be claimed among the employees pertaining to the amelass. However, the parity cannot be claimed when the same is drawn between two different classes performing different work or are at two different post. Since, the interest of the two varies and the public authority has to look into balancing all the various interest and accordingly, it may take decision in the best interest of the employees belonging to different class.

89. This Court is of the view that the petitioners cannot claim parity by stating that the pay scales of the unionised workers of the respondent NO. 1 were revised. Since the petitioners i.e, non- unionised employee is a different class and their case cannot be equated with the case of unionised employees who have been given revised pay scale in terms of a negotiated settlement pursuant to an award passed by the Industrial Tribunal.

90. Accordingly, issue no. iii is decided by this Court.

CONCLUSION

91. In view of the aforementioned discussions and judgments cited, the writ petition under Article 226 of the Constitution of India is dismissed against the respondents in view of the above said discussions for the following reasons: a) Petitioners do not have a vested right/legal right in claiming revised pay especially since the respondent no.1/employer of the petitioners is running in losses since the year 2003 and hence, is not in a position to revise the pay scale of the petitioners. b) Moreover, the petitioners cannot claim parity with the unionised employee since the petitioners fall in a different class and their case cannot be equated with the case of unionised employees who have been given revised pay scale in terms of a negotiated settlement pursuant to an award of the Industrial Tribunal.

92. This Court discerns no material to establish the propositions put forth by the petitioners. The petitioners have not been able to make out its case for the grant of reliefs, as has been prayed by them.

93. Accordingly, all the writ petitions stand dismissed along with pending applications, if any.

94. The judgment be uploaded on the website forthwith.

JUDGE OCTOBER 6, 2023 dy/db/ryp