Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6904 OF 2011
(Arising out of S.L.P. (C) NO.12901 OF 2008)
Orissa Power Transmission Corporation Ltd. ... Appellant
Versus
Khageswar Sundaray & Ors. ... Respondents
O R D E R
A. K. PATNAIK, J.
Leave granted.
2. This is an appeal against the order dated 18.12.2007
of the Division Bench of the Orissa High Court in OJC
No.5768 of 1994.
3. The facts very briefly are that the Orissa State
Electricity Board (for short `the OSEB') decided in its
meeting held on 02.05.1970 that Lower Division Clerks
(for short `the LDCs') in the Circles, Divisions and Sub-
Divisions of the OSEB shall be granted two advance
increments in the time-scale of pay attached to the
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post on their becoming graduates while in service.
Accordingly, an office order was passed by the
Secretary of the OSEB on 17.06.1970 and LDCs of the
OSEB would be granted two advance increments on
their becoming graduates while in service. On
03.10.1970, a Tripartite Settlement was entered into
by the OSEB with the Employees Unions regarding
revision of wages of the employees of the OSEB and on
30.06.1971 an office order was issued by the Secretary
of the OSEB giving the details of the revised scales of
pay, dearness allowance and house rent allowance
admissible to the employees of the OSEB as on
01.04.1969. Thereafter in terms of settlement dated
03.10.1970, the OSEB constituted an Anomaly
Committee which was to examine inter alia the issue
with regard to advance increments in the revised
scales of pay for employees who became graduates
while in service. The Anomaly Committee
recommended inter alia that two advance increments
which were given to LDCs working in the different
Circles, Divisions and Sub-Divisions of the OSEB in
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the Pre-revised scale of Rs.80-135 may be given such
advance increments in the revised scale of pay when
the employees become graduates or pass Accounts
Examinations on or before 30.06.1971 and such
advance increments may not be given to those
employees who become graduates or pass Accounts
Examinations subsequent to 30.06.1971. The
recommendations of the Anomaly Committee were
considered by the OSEB in its meeting held on
12.05.1973 and the OSEB accepted the
recommendations of the Anomaly Committee saying
that the employees, who graduated or passed Accounts
Examinations on or before 30.06.1971, would be
eligible for such two advance increments. The decision
of the OSEB was followed by a Circular dated
16.07.1973 clearly saying that the benefit of advance
increments shall be allowed in the revised pay-scale to
the employees who have graduated or have passed the
Accounts Examinations on or before 30.06.1971. The
respondent Nos.1 to 5, who have been working as
LDCs under the OSEB, passed the graduate
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examinations in the years 1974, 1975 and 1976 and
were not granted two advance increments by the
OSEB.
4. Aggrieved, the respondent Nos.1 to 5 filed a writ
petition before the Orissa High Court being OJC
No.1428 of 1979 and the writ petition was disposed of
by the High Court with a direction to the OSEB to
dispose of the representations of the respondent Nos. 1
to 5. Pursuant to the direction of the High Court, the
OSEB rejected the representations. Thereafter,
respondent Nos.1 to 5 filed another writ petition being
OJC No.2237 of 1981 claiming two advance
increments. The OSEB in its counter-affidavit filed
before the High Court stated that the earlier
notification of 1970 under which two advance
increments were given to employees of the OSEB who
graduated while in service had been withdrawn. The
High Court in its order dated 12.04.1989 held that
since the basis of the relief claimed by respondent Nos.
1 to 5 was the notification of 1970 which had been
withdrawn, the High Court cannot grant any relief to
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the respondent Nos. 1 to 5 but reserved liberty to the
said respondents to challenge the legality of the
decision of the OSEB taken in its meeting held on
12.05.1973 confining the benefit of advance
increments to those employees who had become
graduates or passed Accounts Examinations on or
before 30.06.1971. The respondent Nos. 1 to 5 filed a
fresh writ petition being OJC No.5768 of 1994 praying
for quashing the decision of the OSEB in 1973 and the
office order dated 16.07.1973 confining the benefit of
advance increments in the revised scales of pay to the
employees who graduated or had passed the Accounts
Examinations on or before 30.06.1971.
5. The High Court allowed the writ petition being OJC
No.5768 of 1994 by the impugned order dated
18.12.2007. In the impugned order, the High Court
observed that respondent Nos. 1 to 5 will get the
benefit of only Rs.6/- in their monthly pay. The High
Court held that other employees similarly placed like
the respondent Nos.1 to 5 had been given the benefit
and there should not have been any discrimination
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and they should not have been denied the same benefit
of two advance increments. The High Court also held
that the proceedings of the meeting of the OSEB held
on 12.05.1973 in which the decision to grant two
advance increments to the employees who had
graduated or had passed the Accounts Examinations
on or before 30.06.1971 did not disclose any reason,
far less any justifiable reason, to confine the benefit of
the two advance increments only to the employees
fulfilling the criteria by a cut-off date and hence the
decision of the OSEB was arbitrary. The High Court
accordingly quashed the decision of the OSEB taken
on 12.05.1973 so far as respondent Nos. 1 to 5 were
concerned and directed that two advance increments
be notionally given to respondent Nos. 1 to 5 in their
Pre-revised scale of pay with effect from the respective
dates they acquired the degree qualifications in the
year 1974-1976 and on that basis fix their current pay
and pay their current salary accordingly. The High
Court, however, observed that the impugned order will
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be confined to only respondent Nos. 1 to 5 and shall
not be a precedent for others.
6. We have heard learned counsel for the parties and we
find that in the proceedings of the meeting of the
OSEB held on 12.05.1973, it is stated that the Wage
Board Award recommending revised scales of pay was
not clear if the advance increments were to continue
and the Anomaly Committee after considering the
matter had recommended that the benefit of advance
increments should be given to employees who
graduated or passed the Accounts Examinations on or
before 30.06.1971 and that those who have passed the
concerned examinations after this date shall not be
eligible for this benefit. In the proceedings of the
meeting of the OSEB held on 12.05.1973 it was also
made clear that the OSEB accepted the
recommendations of the Anomaly Committee not to
allow advance increments in the case of employees
who had obtained the degree or passed the Accounts
Examinations subsequent to 30.06.1971. If
respondent Nos. 1 to 5 desired to challenge this
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decision of the OSEB as arbitrary and discriminatory,
they should have placed sufficient materials before the
court to demonstrate that the cut-off date of
30.06.1971 adopted by the OSEB was arbitrary and
discriminatory and that the decision of the OSEB was
violative of Article 14 of the Constitution. In the
impugned order, the High Court has not referred to
any such materials and has instead held that the
proceedings of the meeting of the OSEB did not
disclose any reason, far less any justifiable reason, to
confine the benefit of two advance increments to
employees who graduated or passed the Accounts
Examinations on or before 30.06.1971.
7. We are of the considered opinion that the view taken
by the High Court that in the absence of any reason
given by the decision of the OSEB in its meeting held
on 12.05.1973 to fix the cut-off date of 30.06.1971 for
becoming a graduate or passing the Accounts
Examinations for an employee to be entitled to the two
advance increments, its decision was arbitrary and
discriminatory is not sustainable in law. The OSEB as
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the employer was fully with its powers to decide the
cut-off date for the employee to become a graduate or
passing the Accounts Examinations to be eligible to
the two advance increments in the revised scales of
pay and the decision of the OSEB could not be held to
be arbitrary only because the reason for decision was
not stated in the proceedings of the meeting of the
OSEB in which the decision was taken. This Court in
State of Bihar and Others vs. Ramjee Prasad and
Others [(1990) 3 SCC 368] held:
"the choice of date cannot be dubbed as arbitrary
even if no particular reason is forthcoming for the
same unless it is shown to be capricious or
whimsical or wide off the reasonable mark".
8. In a recent case in National Council for Teacher
Education and Others vs. Shri Shyam Shiksha Prashikshan
Sansthan and Others [(2011) 3 SCC 238] this Court after
referring to various earlier authorities on the point in
Sushma Sharma (Dr.) vs. State of Rajasthan [1985 supp.
SCC 45], UGC vs. Sadhana Chaudhary [(1996) 10 SCC 536],
Ramrao vs. All India Backward Class Bank Employees
Welfare Association [(2004) 2 SCC 76] and State of Punjab
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vs. Amar Nath Goyal [(2005) 6 SCC 754] has reiterated this
position of law and has held the cut-off dates specified in
clauses (4) and (5) of Regulation 5 of the National Council
for Teacher Education (Recognition Norms and Procedure)
Regulations, 2007 to be valid.
9. We, therefore, allow this appeal and set aside the
impugned order of the Division Bench of the High Court
and dismiss the writ petition of respondent Nos. 1 to 5.
There shall be no order as to costs.
.............................J.
(R. V. Raveendran)
.............................J.
(A. K. Patnaik)
New Delhi,
August 11, 2011.
