wise list of such employees whose particulars have been found
consistent with the requirement is enclosed herewith.
ii) Service records of these employees would be
maintained by opening of service-book for each of such fixed
pay employees.
iii) After opening of the service book and on completion of
5 (five) years of service from the date of joining, such
employees would be provided regular scale of pay.
4. To facilitate quick action for implementation of the
above decision, appropriate authorities of the concerned
Administrative Departments of the State Government are
authorized to take following action:
5. All departments are requested to take action
immediately for implementation of the above decisions.
Sd/- illigible
(A. Roy)
Deputy Secretary to the
Government of Tripura"
23) The principle of 'equal pay for equal work' has been discussed in
several judgments of the Supreme Court.
24) In Randhir Singh v. Union of India6, the Supreme Court of
India held:
"8. It is true that the principle of "equal pay for equal
work" is not expressly declared by our Constitution to be a
fundamental right. But it certainly is a constitutional goal.
Article 39(d) of the Constitution proclaims "equal pay for
equal work for both men and women" as a directive
principle of State Policy. "Equal pay for equal work for
both men and women" means equal pay for equal work for
everyone and as between the sexes. Directive principles, as
has been pointed out in some of the judgments of this Court
have to be read into the fundamental rights as a matter of
interpretation. Article 14 of the Constitution enjoins the
State not to deny any person equality before the law or the
equal protection of the laws and Article 16 declares that
there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any
office under the State. These equality clauses of the
Constitution must mean something to everyone. To the vast
majority of the people the equality clauses of the
Constitution would mean nothing if they are unconcerned
with the work they do and the pay they get. To them the
equality clauses will have some substance if equal work
means equal pay. ... Questions concerning wages and the
like, mundane they may be, are yet matters of vital concern
to them and it is there, if at all that the equality clauses of
the Constitution have any significance to them. The
Preamble to the Constitution declares the solemn
resolution of the people of India to constitute India into a
Sovereign Socialist Democratic Republic. Again the word
"socialist" must mean something. Even if it does not mean
'to each according to his need', it must at least mean
(1982) 1 SCC 618 : 1982 SCC (L&S) 119, at page 622
"equal pay for equal work". ....... Construing Articles 14
and 16 in the light of the Preamble and Article 39 (d), we
are of the view that the principle "equal pay for equal
work" is deducible from those Articles and may be
properly applied to cases of unequal scales of pay based
on no classification or irrational classification though
those drawing the different scales of pay do identical work
under the same employer.
9. There cannot be the slightest doubt that the drivers
in the Delhi Police Force perform the same functions and
duties as other drivers in service of the Delhi
Administration and the Central Government. If anything,
by reason of their investiture with the "powers, functions
and privileges of a police officer", their duties and
responsibilities are more arduous. In answer to the
allegation in the petition that the driver-constables of the
Delhi Police Force perform no less arduous duties than
drivers in other departments, it was admitted by the
respondents in their counter that the duties of the driver-
constables of the Delhi Police Force were onerous. What
then is the reason for giving them a lower scale of pay than
others? There is none. The only answer of the respondents
is that the drivers of the Delhi Police Force and the other
drivers belong to different departments and that the
principle of "equal pay for equal work" is not a principle
which the courts may recognise and act upon. We have
shown that the answer is unsound. The clarification is
irrational. We, therefore, allow the writ petition and direct
the respondents to fix the scale of pay of the petitioner and
the driver-constables of the Delhi Police Force at least on
a par with that of the drivers of the Railway Protection
Force. The scale of pay shall be effective from January 1,
1973, the date from which the recommendations of the Pay
Commission were given effect."
(emphasis supplied)
25) Thus principle of 'equal pay for equal work' as flowing from
Art.14, 16 and Art.39(d) of the Constitution of India is applied to cases of
unequal scales of pay based on no classification or irrational classification and
has been reiterated in a number of cases. It was held that in determining
equality of functions and responsibilities under the principle of "equal pay for
equal work", it is necessary to keep in mind that the duties of the two posts
should be of equal sensitivity, and also, qualitatively similar. Differentiation
of pay scales for posts with difference in degree of responsibility, reliability
and confidentiality, would fall within the realm of valid classification, and
therefore, pay differentiation would be legitimate and permissible. If there is
no classification or it is irrational or arbitrary, differentiation of pay scales is
impermissible.
26) In State of Punjab v. Jagjit Singh7, the Supreme Court summed
up the principles for applying the doctrine of "equal pay for equal work" in the
following manner:
"42.1. The "onus of proof" of parity in the duties and
responsibilities of the subject post with the reference post under
the principle of "equal pay for equal work" lies on the person
who claims it. He who approaches the court has to establish that
the subject post occupied by him requires him to discharge equal
work of equal value, as the reference post (see Orissa University
of Agriculture & Technology case8, UT Chandigarh, Admn. v.
(2017) 1 SCC 148
(2003) 5 SCC 188
Manju Mathur9, SAIL case10 and National Aluminium Co. Ltd.
case11).
42.2. The mere fact that the subject post occupied by the claimant
is in a "different department" vis-à-vis the reference post does
not have any bearing on the determination of a claim under the
principle of "equal pay for equal work". Persons discharging
identical duties cannot be treated differently in the matter of their
pay, merely because they belong to different departments of the
Government (see Randhir Singh case( 6 supra) and D.S. Nakara
case12).
42.3. The principle of "equal pay for equal work", applies to
cases of unequal scales of pay, based on no classification or
irrational classification (see Randhir Singh case( 6 supra)). For
equal pay, the employees concerned with whom equation is
sought, should be performing work, which besides being
functionally equal, should be of the same quality and sensitivity
(see Federation of All India Customs and Central Excise
Stenographers case13, Mewa Ram Kanojia case14, Grih Kalyan
Kendra Workers' Union case15 and S.C. Chandra case16).
42.4. Persons holding the same rank/designation (in different
departments), but having dissimilar powers, duties and
responsibilities, can be placed in different scales of pay and
cannot claim the benefit of the principle of "equal pay for equal
work" (see Randhir Singh case( 6 supra), State of Haryana v.
Haryana Civil Secretariat Personal Staff Assn.17 and Hukum
Chand Gupta case18). Therefore, the principle would not be
(2011) 2 SCC 452
(2011) 11 SCC 122
(2014) 6 SCC 756
(1983) 1 SCC 305
(1988) 3 SCC 91
(1989) 2 SCC 235
(1991) 1 SCC 619
(2007) 8 SCC 279
(2002)6 SCC 72
(2012) 12 SCC 666
automatically invoked merely because the subject and reference
posts have the same nomenclature.
42.5. In determining equality of functions and responsibilities
under the principle of "equal pay for equal work", it is necessary
to keep in mind that the duties of the two posts should be of equal
sensitivity, and also, qualitatively similar. Differentiation of pay
scales for posts with difference in degree of responsibility,
reliability and confidentiality, would fall within the realm of valid
classification, and therefore, pay differentiation would be
legitimate and permissible (see Federation of All India Customs
and Central Excise Stenographers case(13 supra) and SBI
case19). The nature of work of the subject post should be the same
and not less onerous than the reference post. Even the volume of
work should be the same. And so also, the level of responsibility.
If these parameters are not met, parity cannot be claimed under
the principle of "equal pay for equal work" (see State of U.P. v.
J.P. Chaurasia20 and Grih Kalyan Kendra Workers' Union
case(15 supra).
42.6. For placement in a regular pay scale, the claimant has to be
a regular appointee. The claimant should have been selected on
the basis of a regular process of recruitment. An employee
appointed on a temporary basis cannot claim to be placed in the
regular pay scale (see Orissa University of Agriculture &
Technology case( 8 supra).
42.7. Persons performing the same or similar functions, duties
and responsibilities, can also be placed in different pay scales.
Such as -- "selection grade", in the same post. But this
difference must emerge out of a legitimate foundation, such as --
merit, or seniority, or some other relevant criteria (see State of
U.P. v. J.P. Chaurasia( 20 supra)).
(2002) 4 SCC 556
(1989) 1 SCC 121
42.8. If the qualifications for recruitment to the subject post vis-à-
vis the reference post are different, it may be difficult to conclude
that the duties and responsibilities of the posts are qualitatively
similar or comparable (see Mewa Ram Kanojia case(14 supra)
and State of W.B. v. Tarun K. Roy21). In such a case the
principle of "equal pay for equal work" cannot be invoked.
42.9. The reference post with which parity is claimed under the
principle of "equal pay for equal work" has to be at the same
hierarchy in the service as the subject post. Pay scales of posts
may be different, if the hierarchy of the posts in question, and
their channels of promotion, are different. Even if the duties and
responsibilities are same, parity would not be permissible, as
against a superior post, such as a promotional post (see Union of
India v. Pradip Kumar Dey22 and Hukum Chand Gupta case(18
supra))
42.10. A comparison between the subject post and the reference
post under the principle of "equal pay for equal work" cannot be
made where the subject post and the reference post are in
different establishments, having a different management. Or even,
where the establishments are in different geographical locations,
though owned by the same master (see Harbans Lal case23).
Persons engaged differently, and being paid out of different
funds, would not be entitled to pay parity (see Official Liquidator
v. Dayanand24).
42.11. Different pay scales, in certain eventualities, would be
permissible even for posts clubbed together at the same hierarchy
in the cadre. As for instance, if the duties and responsibilities of
one of the posts are more onerous, or are exposed to higher
nature of operational work/risk, the principle of "equal pay for
equal work" would not be applicable. And also when the
reference post includes the responsibility to take crucial
(2004) 1 SCC 347
(2000)8 SCC 580
(1989) 4 SCC 459
(2008) 10 SCC 1
decisions, and that is not so for the subject post (see SBI case(19
supra))."
(emphasis supplied)
A regular appointee is entitled to regular pay scale
27) Thus as per para 42.6 of Jagjit Singh( 7 supra), for placement in
a regular pay scale, the claimant has to be a regular appointee. The claimant
should have been selected on the basis of a regular process of recruitment.
28) The appellants satisfy this norm because the advertisements
pursuant to which they had been appointed stated that 'permanent posts' of
Graduate and Post Graduate teachers i.e. they were regular posts, were being
filled up. There was admittedly, a regular process of selection and all
appellants fulfilled the eligibility criteria prescribed in the recruitment Rules
and were selected on merit.
29) The respondents have not disputed that prior to 2001, persons
appointed to Group-C and Group-D posts were getting regular scale of pay
from the date of their appointment and only in 2001, the fixed pay policy was
introduced; and later in 2007 it was restricted to 5 years. After the 5 year
period expires, the appointee is being paid regular scale of pay.
30) The respondents have also not disputed that persons appointed
through Tripura Public Service Commission to Group C and D posts were
getting regular scale of pay from the date of their appointment.
31) It is not the case of the respondents that appellants and the
Graduate and Post Graduate Teachers appointed before 2001 or through the
Tripura Public Service Commission previously are discharging different duties
or volume of work, responsibility or sensitivity. There is no denial of the
appellant's contention that they are performing same duties as them. So there
is no rational basis of differentiation between the appellants and such persons.
32) So in the same pool of teachers, some of whom as Graduates and
some are Post Graduates, some people are being paid regular scale of pay
from initial appointment (when appointed prior to 2001 and those appointed
through the Tripura Public Service Commission), but others like appellants are
not being paid the regular scale of pay for first 5 years and only later, when
they complete 5 years service, they are being paid the regular scale of pay,
having been appointed after 2007.
33) As per Jagjit Singh ( 7 supra), the principle of "equal pay for
equal work", applies to cases of unequal scales of pay, based on no
classification or irrational classification. The cases of the appellants squarely
fall in this category.
34) The action of the respondents is blatantly arbitrary and violates
Art.14 and 16 of the Constitution of India. There cannot be discrimination
amongst them by giving some regular scale and some fixed pay.
35) In fact in certain decisions referred to below, the Supreme Court
had applied the principle of 'equal pay for equal work' and granted relief to
casual workers on daily wage basis and even those appointed for short
duration such as one year or daily rated employees on par with regular
appointees to such posts. The appellants, who have been appointed against
regular posts which are permanent therefore stand on a much better and
stronger footing than such persons. We shall briefly deal with some of them.
36) In Dhirendra Chamoli v. State of U.P25, two Class IV
employees of the Nehru Yuvak Kendra, Dehradun, engaged as casual workers
on daily-wage basis, claimed that they were doing the same work as Class IV
employees appointed on regular basis. The reason for denying them the pay
scale extended to the regular employees was that there was no sanctioned post
to accommodate the petitioners, and as such, the assertion on behalf of the
respondent employer was, that they could not be extended the benefits
permissible to regular employees. Furthermore, their claim was sought to be
repudiated on the ground that the petitioners had taken up their employment
with the Nehru Yuvak Kendra knowing fully well that they would be paid
emoluments of casual workers engaged on daily-wage basis, and therefore,
they could not claim beyond what they had voluntarily accepted.
37) The Supreme Court held that it was not open to the Government
to exploit citizens, especially when India was a welfare State, committed to a
socialist pattern of society. The argument raised by the Government was found
to be violative of the mandate of equality enshrined in Article 14 of the
Constitution. The Supreme Court held that the mandate of Article 14 ensured
that there would be equality before law and equal protection of the law. It was
inferred therefrom that there must be "equal pay for equal work". Having
found that employees engaged by different Nehru Yuvak Kendras in the
country were performing similar duties as regular Class IV employees in its
employment, it was held, that they must get the same salary and conditions of
service as regular Class IV employees, and that, it made no difference whether
(1986) 1 SCC 637
they were appointed on sanctioned posts or not. So long as they were
performing the same duties, they must receive the same salary.
38) In Surinder Singh v. CPWD26, the petitioners were employed by
the Central Public Works Department on daily-wage basis. They demanded
the same wage as was being paid to permanent employees doing identical
work. Herein, the respondent employer again contested the claim by raising
the plea that petitioners could not be employed on regular and permanent basis
for want of permanent posts. One of the objections raised to repudiate the
claim of the petitioners was that the doctrine of "equal pay for equal work"
was a mere abstract doctrine and was not capable of being enforced in law.
The objections raised by the Government were rejected. The
Supreme Court held that all organs of the State were committed to the
directive principles of the State policy. It was pointed out that Article 39
enshrined the principle of "equal pay for equal work", and accordingly this
Court concluded that the principle of "equal pay for equal work" was not an
abstract doctrine. It was held to be a vital and vigorous doctrine accepted
throughout the world, particularly by all socialist countries. Referring to the
decision rendered by this Court in D.S. Nakara case27, it was held, that the
above proposition had been affirmed by a Constitution Bench of this Court. It
was held that the Central Government, the State Governments and likewise,
all public sector undertakings, were expected to function like model and
enlightened employers and further, the argument that the above principle was
merely an abstract doctrine which could not be enforced through a court of
law, could not be raised either by the State or by State undertakings. The
(1986) 1 SCC 639
(1983) 1 SCC 305
petitions were accordingly allowed, and the Nehru Yuvak Kendras were
directed to pay all daily-rated employees, salaries and allowances as were paid
to regular employees from the date of their engagement.
39) In Bhagwan Dass v. State of Haryana28, the Education
Department of the State of Haryana was pursuing an adult education scheme,
sponsored by the Government of India, under the National Adult Education
Scheme. The object of the Scheme was to provide functional literacy to
illiterates in the age group of 15 to 35, as also to impart learning through
special contract courses to students in the age group of 6 to 15, comprising of
dropouts from schools. The petitioners were appointed as Supervisors. They
were paid remuneration @ Rs 5000 per month, as fixed salary. Prior to 7-3-
1984, they were paid fixed salary and allowance, @ Rs 60 per month.
Thereafter, the fixed salary was enhanced to Rs 150 per month. The reason for
allowing them fixed salary was that they were required to work only on part-
time basis. The case set up by the State Government was, that the petitioners
were not full-time employees; their mode of recruitment was different from
Supervisors engaged on regular basis; the nature of functions discharged by
them was not similar to those discharged by Supervisors engaged in the
regular cadre; and their appointments were made for a period of six months,
because the posts against which they were appointed were sanctioned for one
year at a time.
Having examined the controversy, the Supreme Court rejected all
the above submissions advanced on behalf of the State Government. It was
held, that the duties discharged by the petitioners even though for a shorter
(1987) 4 SCC 634
duration were not any different from Supervisors engaged in the regular cadre.
Even though recruitment of Supervisors in the regular cadre was made by the
Subordinate Selection Board by way of an open selection, whereas the
petitioners were selected through a process of consideration which was limited
to a cluster of a few villages, it was concluded that, that could not justify the
denial to the petitioners, wages which were being paid to Supervisors,
working in the regular cadre. It was held, that so long as the petitioners were
doing work which was similar to the work of Supervisors engaged in the
regular cadre, they could not be denied parity in their wages. Accordingly it
was held, that from the standpoint of the doctrine of "equal pay for equal
work", the petitioners could not be discriminated against in regard to pay
scales. Having concluded that the petitioners possess the essential
qualification for appointment to the post of Supervisor, and further the duties
discharged by them were similar to those appointed on regular basis, it was
held, that the petitioners could not be denied wages payable to regular
employees. The Court also declined the plea canvassed on behalf of the
Government that they were engaged in a temporary scheme against posts
which were sanctioned on year-to-year basis. On the instant aspect of the
matter, it was held, that the same had no bearing to the principle of "equal pay
for equal work". It was held that the only relevant consideration was whether
the nature of duties and functions discharged and the work done was similar.
While concluding this, the Court clarified that in the said case, it was dealing
with temporary employees engaged by the same employer, doing work of the
same nature as was being required of those engaged in the regular cadre on a
regular basis. It was held that the petitioners, who were engaged on temporary
basis as Supervisors, were entitled to be paid on the same basis, and in the
same pay scale, at which those employed in the regular cadre discharging
similar duties as Supervisors were being paid.
40) These decisions were all referred to in Jagjit Singh (7 supra)
case.
41) When the above decisions apply principle of 'equal pay for equal
work' to daily wage employees and temporary employees and holds they are
entitled to minimum of scale of pay of regular employees, the appellants who
were appointed against regular vacancies through a regular process of
selection on merit, undoubtedly stand on a better and stronger footing. They
could not have been denied the benefit of regular pay scale and other benefits
from the date of their initial appointment by the respondents on the basis of
the two Memorandums.
42) So the policy framed by the State Government in the
memorandum dt.15.12.2001 and memorandum dt.16.10.2007, though
approved by the Cabinet, of giving 'fixed pay' to persons appointed on regular
posts by keeping in abeyance the regular pay scale is arbitrary, irrational and
unreasonable and violates Art.14 of the Constitution of India.
43) It is not open to the Government to exploit citizens, especially
when India is a welfare State, committed to a socialist pattern of society. The
State Government is expected to function like model and enlightened
employer and cannot resort to such actions.
Policy decisions/Cabinet decisions not immune from judicial review
44) We also do not accept the plea of the State that since the
decisions taken in these two memorandums dt.15.12.2001 and 16.10.2007 are
pursuant to Cabinet decisions/policy decisions this Court ought not to interfere
with the same, and the single Judge had rightly denied relief to the appellants.
45) This issue is no more res integra and the Supreme Court has held
time and again that if policies framed by the Government are arbitrary or
unreasonable or violate any fundamental right, they can be challenged in
Constitutional Courts and relief can also be granted to such petitioners.
46) Way back in 1972 , the Supreme Court in Bennett Coleman &
Co. v. Union of India29, while dealing with newsprint import policy held that
it violated Art.14 and Art.19(1)(d) of the Constitution of India. It held:
"69. ...The 10 page ceiling imposed affecting 22 big
newspapers operating above 10 page level with
approximate circulation of over 23 lakhs i.e. more than 25
per cent of the total circulation is arbitrary and treats
them equally with others who are unequal irrespective of
the needs and requirements of the big dailies and thus
violates Article 14 of the Constitution.
70. The impeached policy violates Article 14
because it treats newspapers which are not equal equally
in assessing the needs and requirements of newsprint. The
Government case is that out of 35 newspapers which were
operating on a quota calculated on a higher page level
than 10 pages 28 newspapers will benefit by the
impeached policy of 1972-73. But seven newspapers out of
22 which were operating above 10 page level are placed
at a disadvantage by the fixation of 10 page limit and
entitlement to quota on that basis. There is no intelligible
differentia. Nor has this distinction any relation to
equitable distribution of newsprint. The impeached policy
also offends Article 19(1)(a) of the Constitution.
(1972) 2 SCC 788, at page 816
Newspapers like 19 language dailies reduced their pages
in order to increase circulation though such language
dailies had prior to 1972-73 been given quota to increase
pages. Under the impeached policy these language dailies
are given additional quota to increase their pages against
to 10."
(emphasis supplied)
47) Again in 1980, in Nishi Maghu v. State of J & K30, it was held
that if a policy decision is arbitrary, it is not immune from challenge. The
Supreme Court observed:
"12.... Reserving 50 marks for interview out of a
total of 150 (100 for written examination and 50 for
interview) does seem excessive especially when the time
spent was not more than 4 minutes on each candidate. It is
difficult to see how it is possible within this short span of
time to make a fair estimate of a candidate's suitability on
a consideration of the five specified factors which are not
capable of easy determination, such as physical fitness,
personality, aptitude, general knowledge and general
intelligence. It is also not clear how by merely looking at a
candidate the Selection Committee could come to a
conclusion about his or her physical fitness. The fact that
the allotment of marks is in accordance with a policy
decision may not conclude the matter in all circumstances;
if that decision is found to be arbitrary and infringing
Article 14 of the Constitution, it cannot claim immunity
from challenge."
(emphasis supplied)
48) In 1991, in Shrilekha Vidyarthi (Kumari) v. State of U.P31., the
Supreme Court declared that Article 14 of the Constitution of India applies
(1980) 4 SCC 95, at page 102
also to matters of governmental policy and if the policy or any action of the
government, even in contractual matters, fails to satisfy the test of
reasonableness, it would be unconstitutional. The wide sweep of Article 14
and the requirement of every State action qualifying for its validity on this
touchstone, irrespective of the field of activity of the State, has long been
settled.
49) In 1995, the Supreme Court reiterated it in State of Rajasthan v.
Sevanivatra Karamchari Hitkari Samiti32, held:
"24. .... The wisdom in a policy decision of the
Government, as such, is not justiciable unless such policy
decision is wholly capricious, arbitrary and whimsical
thereby offending the Rule of law as enshrined in Article
14 of the Constitution or such policy decision offends any
statutory provisions or the provisions of the Constitution.
Save as aforesaid, the Court need not embark on
uncharted ocean of public policy."
(emphasis supplied)
50) So there is no merit in the plea of respondents that there is
absolute immunity to an administrative decision merely because it is a policy
decision approved by the State Cabinet.
51) Since the said policy in the Memorandum dt.15.12.2001 and
Memorandum dt.16.10.2007 is violative of Art.14 of the Constitution of
India, they cannot be allowed to stand and are accordingly struck down.
(1991) 1 SCC 212 : 1991 SCC (L&S) 742, at page 239
(1995) 2 SCC 117 : 1995 SCC (L&S) 415 : (1995) 29 ATC 199, at page 125 :
No plea raised by respondents in their counter affidavits about financial
stringency and so single Judge erred in basing his judgment on said plea
52) There is much discussion in the impugned judgment of the
learned Single Judge about financial constraints of the State resulting in
adopting the policy of fixed pay, but we have not been able to find any
pleading to that effect in the counter affidavits filed by the respondents before
the learned Single Judge.
53) No material has also been placed before us to show that the State
Government had financial constraints.
54) When there is no such plea in the counter affidavit and no
material filed to support it, it was not open to the learned single judge to create
a ground of justification for the respondents to adopt the fixed pay policy
contained in the two impugned Memorandums.
55) The action of the respondents in issuing appointment letters to the
appellants stating that their appointment is temporary and liable to be
terminated with 3 months notice, is patently illegal, arbitrary and violative of
Art.14 of the Constitution of India. Having advertised 'permanent' teacher
posts, after the selection process is completed, it is not permissible for the
respondents to appoint them as 'temporary teachers' for 1 year with their
services terminable on 3 months' notice. They are estopped by their own
advertisement from doing so.
The respondents cannot plead appellants are estopped from challenging
the 'fixed pay' clause in their appointments because they were aware of it
from the advertisements
56) The plea of the respondents that appellants were aware that they
will be getting only fixed pay from the date of their appointment because it
was mentioned in the advertisements and so they cannot claim regular pay
scale, is also untenable.
57) There can be no dispute that bargaining power between the
respondents and the appellants is unequal. The appellants cannot be expected
to negotiate individually with the respondents about the illegality committed
by the respondents in giving them 'fixed pay' in their respective appointment
letters though they were getting appointed against regular/permanent posts
after undergoing a proper selection process.
58) In Central Inland Water Transport Co. v. Brojonath33, the
Supreme Court declared:
"100. ... A clause such as Rule 9(i) in a contract of employment
affecting large sections of the public is harmful and injurious to
the public interest for it tends to create a sense of insecurity in
the minds of those to whom it applies and consequently it is
against public good. Such a clause, therefore, is opposed to
public policy and being opposed to public policy, it is void
under Section 23 of the Indian Contract Act.
101. It was, however, submitted on behalf of the appellants
that this was a contract entered into by the Corporation like
any other contract entered into by it in the course of its trading
activities and the court, therefore, ought not to interfere with it.
It is not possible for us to equate employees with goods which
can be bought and sold. It is equally not possible for us to
equate a contract of employment with a mercantile transaction
between two businessmen and much less to do so when the
contract of employment is between a powerful employer and a
weak employee."
102. It was also submitted on behalf of the appellants that
Rule 9(i) was supported by mutuality inasmuch as it conferred
(1986) 3 SCC 156
an equal right upon both the parties, for under it just as the
employer could terminate the employee's service by giving him
three months' notice or by paying him three months' basic pay
and dearness allowance in lieu thereof, the employee could
leave the service by giving three months' notice and when he
failed to give such notice, the Corporation could deduct an
equivalent amount from whatever may be payable to him. It is
true that there is mutuality in Rule 9(i)--the same mutuality as
in a contract between the lion and the lamb that both will be
free to roam about in the jungle and each will be at liberty to
devour the other. When one considers the unequal position of
the Corporation and its employees, the argument of mutuality
becomes laughable."
(emphasis supplied)
59) This logic applies equally to the contracts between the appellants
and respondents and the clauses (a) appointing them on temporary basis; (b)
liable for termination without reason with 3 months' notice and (c) denying
them regular wages by paying only fixed wages for 5 years after appointment
in their appointment letters are all opposed to public policy and hit by Section
23 of the Contract Act,1872 and void.
There is no estoppel against the Constitution and no waiver of fundamental right
60) There cannot be any estoppel against the Constitution of India
and there cannot be any waiver of a fundamental right. In Olga Tellis v.
Bombay Municipal Corporation34, the Supreme Court held :
" 28. ... The Preamble of the Constitution says that India is
a democratic Republic. It is in order to fulfil the promise of
the Preamble that fundamental rights are conferred by the
Constitution, some on citizens like those guaranteed by
Articles 15, 16, 19, 21 and 29 and, some on citizens and
(1985) 3 SCC 545
non-citizens alike, like those guaranteed by Articles 14, 21,
22 and 25 of the Constitution. No individual can barter away
the freedoms conferred upon him by the Constitution. A
concession made by him in a proceeding, whether under a
mistake of law or otherwise, that he does not possess or will
not enforce any particular fundamental right, cannot create
an estoppel against him in that or any subsequent
proceeding. Such a concession, if enforced, would defeat the
purpose of the Constitution. Were the argument of estoppel
valid, an all-powerful State could easily tempt an individual
to forego his precious personal freedoms on promise of
transitory, immediate benefits. Therefore, notwithstanding
the fact that the petitioners had conceded in the Bombay
High Court that they have no fundamental right to construct
hutments on pavements and that they will not object to their
demolition after 15-10-1981, they are entitled to assert that
any such action on the part of public authorities will be in
violation of their fundamental rights. How far the argument
regarding the existence and scope of the right claimed by the
petitioners is well-founded is another matter. But, the
argument has to be examined despite the concession.
29. The plea of estoppel is closely connected with the plea
of waiver, the object of both being to ensure bona fides in
day-to-day transactions. In Basheshar Nath v. CIT35, a
Constitution Bench of this Court considered the question
whether the fundamental rights conferred by the
Constitution can be waived. Two members of the Bench
(Das, C.J. and Kapoor, J.) held that there can be no waiver
of the fundamental right founded on Article 14 of the
Constitution. Two others (N.H. Bhagwati and Subba Rao,
JJ.) held that not only could there be no waiver of the right
conferred by Article 14, but there could be no waiver of any
AIR 1959 SC 159
other fundamental right guaranteed by Part III of the
Constitution. The Constitution makes no distinction,
according to the learned Judges, between fundamental
rights enacted for the benefit of an individual and those
enacted in public interest or on grounds of public policy."
61) This was again reiterated recently in Lombardi Engg. Ltd. v.
Uttarakhand Jal Vidyut Nigam Ltd.36
62) So the respondents cannot contend that the advertisements on the
basis of appellants were selected and appointed mentioned that the appellants
would get 'fixed pay', that the appellants accepted the same without
questioning it and they are estopped from now contending otherwise.
63) We also reject the plea of the respondents that :
(i) the Recruitment Rules indicate the extent of the scale of pay and
not the formula for determination of pay or the guarantee for grant of a regular
pay scale;
(ii) that the Memorandum dt.15.12.2001 and the Memorandum
dt.16.10.2007 together speak of the formula for the determination of pay;
(iii) that these executive instructions do not interfere with the pay
scale but settle down the formula for determination of pay;
(iv) and so the subjects of the two are different and there is no cause
to equate the same.
Such hair splitting cannot be done and the so called distinction is
meaningless and absurd. It cannot be countenanced.
(2024) 4 SCC 341
64) We agree with the contention of the appellants that the intent
behind the policy to appoint only the Group C and D employees, who are
lowest in the hierarchy of employees, on fixed pay is to deny fair and
legitimate salary to them and amounts to their exploitation and that the State
has a duty, while formulating policies, to minimize the inequalities of income
and eliminate inequalities in status, facilities and opportunities.
65) Since the appellants have approached this Court only in 2022 and
not immediately after their appointment as Graduate/Post Graduate teachers,
we direct that the benefit of regular pay be given to each of them notionally
from the date of their joining their service initially as per appointment orders
issued to them by respondents, but actual financial benefits (arrears) shall be
paid for period 3 years prior to the dates of filing of the respective Writ
Petitions with interest at 9% p.a. till date of actual payment which shall not be
more than 3 months from today.
66) For all the aforesaid reasons:
(a) The Writ Appeals are allowed;
(b) The common judgment of the learned Single Judge dt.17.1.2025
in W.P.(C) N0.68 of 2022 and W.P.(C).No.968 of 2022 is set aside;
Consequently, the said Writ Petitions are allowed.
(c) The Memorandum dt.15.12.2001 and the Memorandum
dt.16.10.2007 are declared arbitrary, unconstitutional and violative of Art.14
of the Constitution of India;
(d) The appellants shall be deemed to have been regularly appointed
to the Graduate Teacher and Post Graduate Teacher posts in the School
Education Department of the State of Tripura from their initial date of
appointment ;
(e) the benefit of regular pay and other service benefits be given to
each of them notionally from the date of their joining their service initially as
per appointment orders issued to them by respondents, but actual financial
benefits (arrears) shall be paid for period 3 years prior to the dates of filing of
the respective Writ Petitions with interest at 9% p.a. till date of actual payment
which shall not be more than 3 months from today.
(f) The respondents shall also pay costs of Rs.2000/- within 3
months to each of the appellants.
Pending applications (if any) shall stand disposed of.
(BISWAJIT PALIT, J) (M.S. RAMACHANDRA RAO, CJ)
Pulak
PULAK BANIK Digitally signed by PULAK BANIK
Date: 2026.01.08 12:43:35 +05'30'
