ORISSA POWER TRANSMISSION CORPORATION LTD.versusKHAGESWAR SUNDARAY AND ORS.

                         [2011] 10 S.C.R. 196


A    ORISSA POWER TRANSMISSION CORPORATION LTD.
                                    v.
               KHAGESWAR SUNDARAY AND ORS.
                 (Civil Appeal No. 6904 of 2011)
                           AUGUST 11, 2011
B
          [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.)

            Service Law - Advance increments - Entitlement to -
    Cut-off date - Office order passed by the Orissa State
C   Electricity Board (OSEB) that Lower Division Clerks (LDCs)
    in OSEB shall be granted two advance increments in the time-
    scale of pay on their becoming graduates while in service -
    Wages of OSEB employees revised - OSEB constituted an
    Anomaly Committee to examine the issue with regard to
D   advance increments in the revised scales of pay - Anomaly
    Committee made recommendation that the benefit of
    advance increments in the revised scales of pay be confined
    tO employees who graduated or had passed the Accounts
    Examinations on or before 30.06.1971 - Recommendations
E   of the Anomaly Committee accepted by the OSEB -
    Respondent Nos. 1 to 5, who were working as LDCs under the
    OSEB, and had passed graduate examinations in the years
    1974 - 1976, were not granted advance increments by the
    OSEB - They filed writ petition - High Court allowed the writ
F   petition holding that the decision of the OSEB did not disclose
    any reason, far Jess any justifiable reason, to confine the
    benefit of the two advance increments only to the employees
    fulfilling the criteria by a cut-off date i.e. 30.06.1971 and hence
    the decision was arbitrary - High Court accordingly quashed
    the decision of the OSEB so far as respondent Nos. 1 to 5
G   were concerned and directed that two advance increments be
    notionally given to them 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

H                                  196
  ORISSA POWER TRANSMISSION CORPORATION                  197
        LTD. v. KHAGESWAR SUNDARAY
current pay and pay their current salary accordingly - On       A
appeal, held: The view taken by the High Court that the
decision of OSEB was arbitrary and discriminatory is not
sustainable in law - The OSEB as the employer was fully with
its powers to decide the cut-off date for the employees to
become a graduate or passing the Accounts Examinations          B
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 - Order of the High Court set aside      c
and the writ petition of respondent Nos. 1 to 5 dismissed -
Constitution of India, 1950 - Article 14.

    State of Bihar and Ors. v. Ramjee Prasad and Ors. (1999)
3 SCC 368: 1990 (2) SCR 468 and National Council
Education and Ors. v. Shri Shyam Shiksha Prashikshan            D
Sansthan and Ors. (2011) 3 SCC 238: 2011 (2) SCR 291 -
relied on.

     Sushma Sharma (Dr.) v. State of Rajasthan 1985 supp.
SCC 45; UGC vs. Sadhana Chaudhary (1996) 10 SCC 536:            E
1996 (6) Suppl. SCR 392; Ramrao vs. All lndiaBackward
Class Bank Employees Welfare Association (2004) 2 SCC
76: 2004 (1) SCR 19 and State of Punjab vs. Amar Nath
Goyal (2005) 6 SCC 754: 2005 (2) Suppl. SCR 549 -
referred to.                                                    F
                     Case Law Reference:
    1990 (2) SCR 468              relied on     Para 7
    2011 (2) SCR 291              relied on     Para 8
                                                                G
    1985 Supp. sec 45             referred to   Para 8
    1996 (6) Suppl. SCR 392       referred to   Para 8
    2004 (1) SCR 19               referred to   Para 8
    2005 (2) Suppl. SCR 549       referred to   Para 8          H
    198       SUPREME COURT REPORTS                [2011] 10 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6904 of 2011.

        From the Judgment & Order dated 18.12.2007 of the High
    Court of Orissa at Cuttac in O.J.C. No. 5768 of 1994.
B         Raj Kumar Mehta . Antrryami, Upadhyay for the Appellant.

          Shibashish Mishra, Umang Shankar, Ugra Shankar Prasad
    for the Respondents.

          The order of the Court was delivered by
c
                                 ORDER

          A. K. PATNAIK, J. 1. Leave granted.

D       · 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
 E 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 post on their becoming graduates while in
   service. Accordingly, an office order was passed by the
 F 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
 G 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
 H constituted an Anomaly Committee which was to examine inter
   ORISSA POWER TRANSMISSION CORPORATION 199
  LTD. v. KHAGESWAR SUNDARAY [A.K. PATNAIK, J.]
 alia the issue with regard to advance increments in the revised         A
 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 the Pre-revised scale of Rs.80-135 may be given such                 B
 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 graduate~ or pass
 Accounts Examinations subsequent to 30.06.1971. The                     c
 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
 E;xaminations on or before 30.06.1971, would be eligible for
                                                                         0
 such two advance increments. The decision of the OSEB was
 followed.bya 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                E
 under the OSEB, passed the graduate 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    F
   before the Orissa High Court being OJC No.1428of1979 and
  the writ petition was disposed of by the High Court with a
1 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,              G
  respondent Nos.1 to 5 filed another writ petition being OJC
  No.2237of1981 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             H
    200     SUPREME COURT REPORTS                [2011] 10 S.C.R.


A 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 the
  respondent Nos. 1 to 5 but reserved liberty to the said
B 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
c 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.
D       5. The High Court allowed the writ petition being OJC
  No.5768of1994 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
E like the respondent Nos.1 to 5 had been given the benefit and
  there should not have been any discrimination 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
F 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·
G 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
H
 ORISSA POWER TRANSMISSION CORPORATION 201
LTD. v. KHAGESWAR SUNDARAY [A.K. PATNAIK, J.]
the degree qualifications in the year 1974-1976 and on that        A
basis fix their current pay and pay their current salary
accordingly. The High Court, however, observed that the
impugned order will 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 8
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 C
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 D
OSEB held on 12.05.1973 it was also made clear thaf 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 E
respondent Nos. 1 to 5 desired to challenge this 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 F
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 G
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      H
    202       SUPREME COURT REPORTS               [2011] 10 S.C.R.


A 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 the employer was fully with its powers to de9ide tbe cut:off
B 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
c of the OSEB in which the decision was taken. This Court in
  State of Bihar and Others vs. Ramjee Prasad and Others
  [(1990) 3 sec 368] held:
          "the choice of date cannot be dubbed as arbitrary even if
          no particular reason is forthcoming for the same unless it
D         js 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
E referring to various earl~r 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 vs. Amar
F 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.
G        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.

H B.B.B.                                           Appeal allowed.