R. V. RAVEENDRAN, J. ( 1 ) THE appellant herein (also referred to as 'sc/st Welfare Association') was the second respondent in W. P. No. 24538 of 1996 and petitioner in w. P. No. 3349 of 1997. It claims to represent the employees of the indian Institute of Science belonging to Scheduled Castes and Scheduled tribes. First respondent herein ('institute or Employer") was the first respondent in W. P. No. 24538 of 1996 and sole respondent in W. P. No. 3349 of 1997. The second respondent herein ('employees Association') claiming to represent the interest of all the employees of the Institute, was the petitioner in W. P. No. 24536 of 1996. ( 2 ) THE first respondent-Institute is an institution for Higher education and a deemed University. The Institute introduced the policy of reservation of posts for Scheduled Castes and Scheduled Tribes with effect from 1-4-1971. ( 3 ) THE Institute introduced a Career Advancement Scheme for its employees ('ca Scheme' for short), with effect from 1-7-1978 on the basis of periodic evaluation of their performance. It is stated that in regard to each cadre, there are several scales of pay which can be attained by every employee provided he is found fit for the higher pay scale on periodic evaluation of efficiency and performance. The period for eligibility for evaluation for the next higher grade was originally five years for all employees including those belonging to Scheduled Castes and Scheduled Tribes. ( 4 ) SUBSEQUENTLY, under a Tripartite agreement entered among the institute, the Employees Association and the SC/st Welfare association, the evaluation period was reduced to three years for SC/st employees with effect from 1-7-1983 while continuing the evaluation period as five years for the general category of employees. The working of the CA Scheme was reviewed by the Institute, at the end of three years as contemplated in the Tripartite agreement. According to the institute, such review disclosed that the revised CA Scheme introduced with effect from 1-7-1983 providing for a lesser evaluation period of three years for SC/st employees caused distortions in the service conditions of the employees. According to the institute, such review disclosed that the revised CA Scheme introduced with effect from 1-7-1983 providing for a lesser evaluation period of three years for SC/st employees caused distortions in the service conditions of the employees. Therefore, the Governing Council of the institute at its meeting held on 24-12-1985 resolved that (i) the SC/st employees to be appointed thereafter shall be evaluated on completion of five years of service as applicable to all other categories of staff; (ii) those sc/st employees who were already serving in the Institute be given the benefit of one or two 'three years' evaluations depending on the service rendered as on 1-7-1983; and (iii) the Director of the Institute be authorised to examine the cases of senior SC/st employees in the matter of their pay and determining the dates of future evaluation. After implementation of the recommendations of the fourth Central Pay commission by the Institute with effect from 1-1-1986, an uniform qualifying period of six years was implemented for evaluation of all categories of employees including SC/st employees, under the CA scheme. ( 5 ) THE employees of the Institute belong to general category resorted to agitations during December 1991 for rectification of the distortions resulted from the three years evaluation made in the case of SC/st employees from 1-7-1983. In that behalf, a settlement was reached between the Institute and the Employees Association in December 1991, involving advancing one appropriate earlier evaluation of general category employees by 2/3 years and virtually bringing the general category of employees on par with SC/st employees and ensuring that in any given cadre, a junior employee will not draw a higher salary than a senior employee. Aggrieved by the said settlement, the SC/st employees commenced agitations for continuation of the earlier arrangement providing for evaluation at the end of three years for sc/st employees and at the end of five years for other employees. As the Institute did not agree for the said request, and certain other claims, the SC/st Welfare Association gave a representation dated 2-1-1996 to the National Commission for Scheduled Castes and Scheduled Tribes ('commission' for short ). The SC/st Welfare Association also gave notice to the Institute threatening that its President and Secretary will go on a fast Unto Death with effect from 12-6-1996, if its demands were not met. The SC/st Welfare Association also gave notice to the Institute threatening that its President and Secretary will go on a fast Unto Death with effect from 12-6-1996, if its demands were not met. The Director of the Institute therefore sent a communication dated 11-6-1996 to the Commission to intervene in the matter and instruct the sc/st Welfare Association to call off the agitation. In pursuance of it, representations of the Institute and the SC/st Welfare Association met the officers of the Commission and held discussion on 3-7-1996. ( 6 ) ON the basis such discussions, the Commission sent a report to the institute under cover of its letter dated 18/26-7-1996. The report was in the form of a statement setting out (i) the several points raised by the sc/st Welfare Association; (ii) the stand of the Institute on such points; and (iii) the recommendations/findings of the Commission on such points. In the said report, in regard to Career Advancement Scheme, the commission recommended that the Institute should provide one year relaxation to SC/st candidates when compared to general candidates. The 'finding of the Commission is extracted below. "evaluation in the present form has element of selection because all the people evaluated are not picked up. Evaluation has an element of benefit. Since the evaluation gives some increase in the salary which is not called as promotion. Whenever there is an element of selection or element of upgradation or promotion, the guidelines stipulates the relaxation. Hence, Institute should provide one year relaxation compared to general candidates from the date the facility has been withdrawn". ( 7 ) THE Employees Association filed W. P. No. 24538 of 1996 seeking a direction to the Institute not to implement the recommendations of the commission made on 3-7-1996. In the meanwhile the Governing Council of the Institute by resolution dated 28-9-1996 constituted a Committee to examine the evaluation policy of the Institute and make recommendations taking into account the finding/recommendations of the Commission, the steps to be taken to rectify the consequential anomalies and the future evaluation policy of the Institute. The committee submitted a report inter alia recommending acceptance of the finding of the Commission in regard to relaxation of one year in the evaluation period under CA Scheme in regard to SC/st employees, as compared to employees of other categories. The committee submitted a report inter alia recommending acceptance of the finding of the Commission in regard to relaxation of one year in the evaluation period under CA Scheme in regard to SC/st employees, as compared to employees of other categories. ( 8 ) ACTING on the recommendations of the Commission and the recommendations its Committee, the Governing Council of the Institute passed the following resolution dated 28-12-1996:"resolution No. XII. That, (i) One year relaxation in the evaluation period of SC and ST employees as compared to employees other than SC and ST categories be extended to SC and ST employees in the evaluations under the six years evaluation Scheme after the discontinuation of the 3 years evaluation in respect of SC and ST employees under groups B, C and D category except those who were appointed in the scale of Rs. 1640-2900 and above and who were on roll in those categories as on 28th September, 1996; (ii) Letter of actual placement in the higher scale of pay wherever admissible be issued; (iii) After extending one year relaxation in evaluation, the evaluation of SC and ST employees who had completed 5 years of service and became due for evaluation on or before 31st December, 1995 be taken up and completed; (iv) The same qualifying mark as are obtaining to general category of employees be adopted in respect of evaluations of SC and ST employees to be conducted as above in (iii); (v) Employees belonging to other than SC and ST category who were on roll as on 28th September, 1996, be paid arrears for the period from 1st April, 1990 to 31st December, 1990 as monetary benefit in implementing the negotiated settlement of December 1991 with regard to advancement process only; (vi) If the pay of the senior general category employee becomes less than that of a Junior SC and ST employees within the same cadre and scale of pay, consequent on the implementation of one year relaxation in evaluation for SC and ST employees, as recommended by the National Commission, the pay of such senior general category employee be stepped up to that of the Junior sc/st employee from the date such senior employee becoming eligible for the higher scale of pay after being successful/qualified in the evaluation; (vii) Further evaluations beyond 31st December, 1995 in respect of groups B, C and D category of employees be not taken up until the future evaluation policy of the Institute in respect of Groups b, C and D category of employees is formulated by the Council after adoption of the recommendations of the 5th Central Pay commission; and (viii) A standing committee be appointed by the Director to examine individual cases of anomalies are brought to attention as a result of implementation of all these recommendations". When the Institute passed the said resolution dated 28-12-1996 implementing the recommendation of the Commission, the Employees association amended W. P. No. 24538 of 1996 and sought quashing of the said resolution dated 28-12-1996 also. When the Institute passed the said resolution dated 28-12-1996 implementing the recommendation of the Commission, the Employees association amended W. P. No. 24538 of 1996 and sought quashing of the said resolution dated 28-12-1996 also. ( 9 ) THE SC/st Welfare Association filed W. P. No. 3349 of 1997 challenging clauses (v) and (vi) of Resolution No. XII, dated 28-12-1996 which sought to extend some consequential benefits to general category of employees and seeking a direction to the Institute to implement the finding of the Commission in the matter of relaxation of evaluation period by one year. ( 10 ) BOTH the petitioners were heard together and disposed of by a common order dated 27-8-1998. The learned Single Judge considered the following points and gave his decision thereon as follows: point decision (1) Whether the writ petition by the Employees Association was not maintainable as the Institute was not 'state'? the Institute fits the character of 'any person or authority used in Article 226 of the Constitution and therefore, writ petition is maintainable. (2) Whether the recommendations of the National Commission for SC/st was binding on the Institute? recommendations of the Commission have no binding force and therefore it was not imperative on the part of the Governing Council of the Institute to implement them. (3) Whether granting relaxation of one year in the period of evaluation for SC/st employees, under the Career Advancement Scheme amounts to violation of the doctrine of 'equal pay for equal work'? evaluation of SC/st employees at the end of five years and evaluation of General category employees at the end of six years for the purpose of CA Scheme is ex facie in derogation of the doctrine of 'equal pay of equal work' and violative of Articles 14 and 16. (4) Whether the employer (I. I. Sc) can validly provide a concession or relaxation in regard to the period of evaluation in the case of SC/st employees for the purpose of Career Advancement Scheme? concess ions/relaxations/and exemptions can be given only if they have a reasonable nexus or proximity to reservation in initial appointments. No concession/ exemption is permissible in the matter of granting promotion. Further any such concession cannot be absolute in nature so as to create disparity between employees similarly situated in the same cadre, like giving of higher pay scale or better service conditions. No concession/ exemption is permissible in the matter of granting promotion. Further any such concession cannot be absolute in nature so as to create disparity between employees similarly situated in the same cadre, like giving of higher pay scale or better service conditions. As a consequence, both the writ petitions were allowed in part and the resolution dated 28-12-1996 of the Institute was held to be constitutionally invalid and accordingly quashed. ( 11 ) FEELING aggrieved, the SC/st Welfare Association has filed these appeals. According to them, Resolution No. XII, dated 28-12-1996 extending the concession of one year evaluation to SC/st employees ought to have been upheld except clauses (v) and (vi) thereof which extends some consequential benefit to general category employees. The appellant (SC/st Welfare Association) has advanced the following contentions: (A) Granting a concession in regard to the period of evaluation, amotmts to making a provision for reservation in matters of promotions in favour of Scheduled Castes and Scheduled Tribes and is valid having regard to Article 16 (4-A) introduced by the Constitution (77th amendment) Act, 1995 with effect from 17-6-1995 and the proviso to article 335 inserted by Constitution (82nd Amendment) Act, 2000 with effect from 8-9-2000. (B) The grant of relaxation/concession in regard to the period of evaluation, even if it results in some disparity in salaries, will not violate the doctrine of 'equal pay for equal work' as (i) such grant is enabled by clauses (4) and (4-A) of Article 16 read with the proviso to article 335; and (ii) the doctrine of 'equal pay for equ,al work' is not absolute in nature. (C) Recommendations made by the National Commission for SC/st are 'decisions' and they are binding on the Institute, under Article 338 (5) (a) of the Constitution. (D) The relaxation/concession given to SC/st employees under the resolution dated 28-12-1996 was an one time measure which has been already implemented. The SC/st employees have already received the monetary benefit following from such concession/relaxation. Even wrong excess payments made to employees cannot be recovered in the absence of fraud or misrepresentation on the part of the employees concerned. Therefore, the challenge to the resolution dated 28-12-1996 has become infructuous. ( 12 ) ON the other hand, the Employees Association contended as follows: (A) The appellant-Association had all along contended that the Career advancement Scheme is not a 'promotion' but only a conferment or 'monetary benefit'. Therefore, the challenge to the resolution dated 28-12-1996 has become infructuous. ( 12 ) ON the other hand, the Employees Association contended as follows: (A) The appellant-Association had all along contended that the Career advancement Scheme is not a 'promotion' but only a conferment or 'monetary benefit'. It cannot at the stage of appeal, change its stand to contend that the Career Advancement Scheme is a promotion and that giving a concession in regard to period of evaluation amounts to lowering the standards of evaluation for reservation in matters of promotion, taking advantage of a subsequent amendment to Article 335 by the Constitution (82nd Amendment) Act, 2000. (B) Conferment of higher pay under the Career Advancement Scheme is not a promotion to a higher post, but is-only an incentive provided to avoid stagnation and frustruction. Relaxation or concession of evaluation period for grant of such monetary benefits by way of higher pay is not a provision for reservation in matters of promotion to any class of posts and therefore is not enabled or saved by clause (4) or (4-A) of Article 16'. (C) Any reservation including concession or relaxation can be resorted to, relying on Article 16 (4-A) only if it is intended to achieve the object of providing adequate representation to Scheduled Castes and Scheduled tribes in the services of the State. The relaxation of one year, in the period of evaluation under the Career Advancement Scheme, for SC/st employees does not achieve the said object. While the object of reservation in recruitment and promotions is to provide adequate representation in the services of the State, the object of Career advancement Scheme is to avoid stagnations and frustration in employment. The grant of concession/relaxation granted by the impugned resolution, cannot be said to have any nexus to the object sought to be achieved by Article 16 (4) and (4-A) and therefore the concessions/relaxation of one year in the period of evaluation is unconstitutional. (D) Any 'decision' by the employer to grant reservation should by voluntary, with the object of achieving adequate representation in the services. (D) Any 'decision' by the employer to grant reservation should by voluntary, with the object of achieving adequate representation in the services. However, if the employer is satisfied that such object will not be achieved by giving such relaxation/concession, but is nevertheless forced to give such relaxation/concession either on account of pressure tactics of a section of employees or on the basis of a non-binding recommendation by the National Commission for SC/st, it cannot be said that relaxation/concession is a reservation made by the employer for the purpose of achieving adequate representation of Scheduled castes and Scheduled Tribes in its services. (E) The impugned resolution dated 28-12-1996 purports to grant relaxation with retrospective effect which is impermissible as it contemplates undertaking evaluation at an anterior' date which is incapable of implementation. At all events, if the injustice caused to general category employees is not undone by withdrawing the benefit of relaxation given to SC/st employees, such benefit should also be extended to other employees. ( 13 ) ON the contentions raised, the following points arise for consideration: (I) Whether granting of relaxation of one year in the evaluation period under the Career Advancement Scheme by the Institute, to its SC/st employees, is valid and constitutional? (II) Whether findings given by the National Commission for sc/st in its report to the Institute are binding decisions? (III) Irrespective of the finding on points (i) and (ii), whether w. P. No. 24538 of 1996 is liable to be dismissed as having become infructuous, in view of the implementation of the resolution dated 28-12-1996 and payment of monetary benefits to the SC/st employees during the pendency of the said writ petition?re: Point No. (i ). ( 14 ) THE nature and effect of evaluation Scheme is explained by the institute in its additional objections dated 12-8-1998. It is extracted below:"in the evaluation Scheme, each and every staff member, after completion of the stipulated years of service required for evaluation, are considered eligible for evaluation for possible placement in the next higher grade, identified of each category of posts. The placement in the higher grade is based on individual performance and not on relative performance. It is extracted below:"in the evaluation Scheme, each and every staff member, after completion of the stipulated years of service required for evaluation, are considered eligible for evaluation for possible placement in the next higher grade, identified of each category of posts. The placement in the higher grade is based on individual performance and not on relative performance. The person so placed in the higher grade carries with him the entry level post until he retires/resigns or gets promoted to a higher post against a vacancy and whereupon, the entry level post with the initial scale of pay only is available for filling. Hence, the placement in the higher grade is personal to the individual and is not subject to availability of any vacancy at the higher level. Whereas reservation orders apply whenever a vacancy is filled either by direct recruitment or by promotion and the number of persons to be promoted is restricted to the number of vacancies, based on relative performance. Whereas evaluation is neither against any vacancy nor based on relative performance, but all those who have completed the stipulated period of service would be considered eligible for evaluation and if all are successful in the evaluation, all would be placed in the next higher grade as personal to the individual to each one of them. Thus under the evaluation scheme, no one who has completed the stipulated years of service required for evaluation, is deprived of the opportunity for evaluation. Since the evaluation Scheme provides only a change in pay scale as personal to the staff member, reservation orders do not apply in such cases and hence no rosters are maintained". (emphasis supplied) ( 15 ) BOTH the appellant and the Institute had contended before the learned Single Judge that grant or relaxation of one year in the evaluation period for CA Scheme did not relate to promotion, but only amounted to extension of a monetary benefit. We may refer to the pleadings briefly. In para 4 of its petition (in W. P. No. 3349 of 1997) the sc/st Welfare Association has stated that CA Scheme involves grant of higher scale of pay just to give monetary benefit without bringing about any change in designation. We may refer to the pleadings briefly. In para 4 of its petition (in W. P. No. 3349 of 1997) the sc/st Welfare Association has stated that CA Scheme involves grant of higher scale of pay just to give monetary benefit without bringing about any change in designation. The SC/st Welfare Association in its statement of objections filed in W. P. No. 24538 of 1996 contended that the very object of introducing the CA Scheme is to extend the higher pay scales/monetary benefits without any promotion (vide para 1); and evaluation under the CA Scheme was only an extension of financial benefits (vide para 8 ). The Institute also, in its statement of objections and additional statements of objections filed in both writ petitions, stated and reiterated that the CA Scheme involving evaluation is intended only to give monetary benefit in higher scales of pay, without promotion, without change in designation, and without effecting seniority in their respective cadre. The learned Single Judge therefore proceeded on the basis that the Scheme related to grant of monetary benefit unconnected with promotion. He did not therefore examine the validity of the resolution dated 28-12-1996 with reference to Article 16 (4-A ). ( 16 ) IN these appeals, the appellant has however taken a different stand. It is contended that 'promotion' does not necessarily refer to promotion to a higher post, but also to promotion to a higher p'ay scale in the same post; and that the term 'reservation' refers not only to reservation simpliciter i. e. , reservation by way of quota in appointments or posts, but also includes grant of lesser forms of benefits in the nature of preferences, relaxations/concessions and exemptions. It is contended that the relaxation by one year in the period of evaluation under the CA scheme is therefore a part of the concept of reservation relating to promotions, provided for under Article 16 (4-A ). It is contended that the relaxation by one year in the period of evaluation under the CA scheme is therefore a part of the concept of reservation relating to promotions, provided for under Article 16 (4-A ). It is also contended that having regard to the addition of the proviso to Article 335 (specifically enabling the making of a provision in favour of members of Scheduled castes and Scheduled Tribes, for relaxation in qualifying marks in any examination or lowering the standards of evaluation for reservation in matters of promotion to any class of services or posts), it is no longer possible to contend on the basis of Article 335, that lesser level of evaluation or lower qualifying marks in the matter of promotions is inconsistent with maintenance of efficiency of administration and therefore impermissible. Scope and extent of reservation permissible in the case of scheduled Castes and Scheduled Tribes: ( 17 ) ARTICLE 14 provides that the State shall not deny tq any person equality before the law or the equal protection of the laws within the territory of India. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 (1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16 (2) bars discrimination in any employment or office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. 17. 1 Clause 4 of Article 16 provides that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any Backward Classes of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Clause 4-A of Article 16 (inserted with effect from 17-6-1995 by the 77th Amendment to the Constitution) provides that nothing in Article 16 shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in farm of the Scheduled Castes and Scheduled Tribes, which in the opinion of the State are not adequately represented in the services under the State. Article 335 provides that the claims of the members of the Scheduled Castes and scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making appointments to services and posts in connection with the affairs of the union or of a State. 17. 2 In order to achieve equality of employment opportunity, clause (4) of Article 16 empowers the State to provide reservation to Backward classes of citizens (including Scheduled Castes and Scheduled Tribes) in the matters of appointment or posts, as a remedy to set right the manifest imbalance in the filed of public employment. The object of article 16 (4) is not amelioration of poverty, but to give due representation to Backward Classes, who are not adequately represented, in the services of the State. Clause (4) of Article 16 is not an exception to clauses (1) and (2) of Article 16 but an instance of classification permitted under Article 16 (1) and (2) (vide Indra Sawhney v Union of India and Others)17. 3 Article 16 (4) and (4-A) providing for reservation in appointments and promotion do not confer any fundamental rights nor do they impose any constitutional duties, but are only in the nature of enabling provisions vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those articles so warrant. The permissible limits of affirmative action by way of reservation are laid down in Article 16 (4) and (4-A ). The reservations in appointment and in promotion permitted under Article 16 (4) and (4-A) should be read with the limitations placed in Articles 14 and 16 (1) so that there is no reverse discrimination. Affirmative action should stop where reverse discrimination begins (vide Ajit Singh and Others v State of Punjab and others ). 17. 4 The words 'matters relating to employment or appointment' in article 16 (1) are wide enough to include all matters in relation to employment, both prior and subsequent to appointment, such as initial appointment, conditions of service like salary, increments, revision of pay, promotion etc. 17. 5 reservation' though normally implies a separate quota in appointments, it may take various other forms also. All supplemental and ancillary provisions in the form of preferences, concessions, relaxations and exemptions, necessary to ensure availment of provision for reservation, can be provided as part of concept of reservation. 17. 5 reservation' though normally implies a separate quota in appointments, it may take various other forms also. All supplemental and ancillary provisions in the form of preferences, concessions, relaxations and exemptions, necessary to ensure availment of provision for reservation, can be provided as part of concept of reservation. Therefore, for the purpose of giving full effect to the provision for reservation, if it is found necessary to provide certain exemptions, concessions or preferences to members of Backward Classes, they can be extended under clause (4) of itself (vide Indra Sawhney, paras 58 and 400 ). 17. 6 Earlier, the Supreme Court had held that the advancement of the Backward Classes required not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In short, it was held that Article 16 (4) contemplated and permitted reservation in promotion as well (General Manager, Southern Railway and Another v Rangachari ). 17. 7 In Indra Sawhney's case, supra (para 107) the Supreme Court held that Article 16 (4) did not permit reservation in the matter of promotions. It was held that at the initial stage of recruitment, reservation can be made in favour of Backward Class of citizens, but once they enter the service, efficiency of administration demanded that those members too compete with others and earn promotion like others. It was however clarified that it would be permissible for the State to extend concessions and relaxations to Backward Classes, in the matter of promotion without compromising the efficiency of the administration. The clarification was subject to the rider that it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories in the matter of promotions since that would compromise the efficiency of administration. This was reiterated in S. Vinod Kumar and Another v union of India and Others. 17. The clarification was subject to the rider that it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories in the matter of promotions since that would compromise the efficiency of administration. This was reiterated in S. Vinod Kumar and Another v union of India and Others. 17. 8 The said two principles laid down in Indra Sawhney's case, supra and S. Vmod Kumar's case, supra that there shall be no reservation in the matter of promotions and that there can be no relaxation in qualifying marks in any examination or lowering the standards of evaluation in the matter of promotions, for any Backward class of citizens are made inapplicable to Scheduled Castes and scheduled Tribes, by two amendments to the Constitution. The said two principles however continue to be applicable to other Backward Classes. By Constitution (77th Amendment ) Act, 1995, clause (4-A) has been inserted in Article 16, with effect from 17-6-1995, enabling the State to make any provision for reservation in matters of promotion to any class or classes of posts, in the services under the State in favour of Scheduled castes and Scheduled Tribes, which in its opinion, are not adequately represented in the services under the State. By Constitution (82nd amendment) Act, 2000, a proviso to Article 335 was added with effect from 8-9-2000, enabling the State from making any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in the matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. 17. 9 The effect of Articles 14, 16 and 335 of the Constitution (as amended by 77th and 82nd Amendments to the Constitution) in regard to reservations in favour of Scheduled Castes and Scheduled Tribes can be summarised thus: (i) There can be reservation in regard to 'appointment' by direct recruitment, but also in appointments by promotions, if in the opinion of the State, Scheduled Castes and Scheduled Tribes are not adequately represented in its services. (ii) Such reservation can be by way of separate quota in appointments, or can be by way of concessions, relaxations, exemptions, provided such concessions/relaxations/exemptions are necessary as ancillary or supplemental provisions to ensure availment of reservation relating to recruitment or promotion. In other words any provision for concession/relaxation/exemption should also be intended to achieve the object of adequate representation in the services. Where a concession/ relaxation/exemption to a class is not intended to achieve the object of adequate representation in the services of the State, nor does it have the effect of achieving the object of adequate representation, it will not have the protection of Article 16 (4) and (4-A) or proviso to Article 335 and therefore will be hit by Article 14. (iii) Any provision for reservation (including concession/relaxation/ exemption) shall be consistent with the maintenance of efficiency of administration. But, the need to be consistent with maintenance of efficiency in administration will not come in the way of the State making any provision in favour of the members of the Scheduled Castes and scheduled Tribes, for relaxation in qualifying marks in any examination or lowering the standards or evaluation, for reservation in matters of promotion to any class or classes of services or posts. (iv) The aim of Articles 14 and 16 is equality and equality of opportunity in matters of public employment. Provision for reservation in clauses (4) and (4-A) of Article 16 is only a means of achieving the said objective and should be treated not as an exception to clauses (1) and (2) of Article 16 but as a special enabling provision, to achieve the object of clauses (1) and (2) of Article 16. Therefore, any provision for reservation under clauses (4) and (4-A) of Article 16, conceived in the interest of a section of the society should be balanced against the guarantee of equality held out to all citizens and to the entire society, under Articles 14 and 16 (1) and (2 ). Validity of the resolution dated 26-12-1996: ( 18 ) CLAUSE (4) or (4-A) of Article 16 or the proviso to Article 335 will come into play only with reference to 'appointment' by 'direct recruitment' or by 'promotion'. We are not concerned with direct recruitment in these matters. Validity of the resolution dated 26-12-1996: ( 18 ) CLAUSE (4) or (4-A) of Article 16 or the proviso to Article 335 will come into play only with reference to 'appointment' by 'direct recruitment' or by 'promotion'. We are not concerned with direct recruitment in these matters. Therefore, the resolution dated 26-12-1996 providing one year relaxation in the evaluation period of sc/st employees, as compared to other employees, under the CA scheme, can be saved if the CA Scheme provides for a 'promotion'. ( 19 ) IF CA Scheme provides for a promotion, then Article 16 (4-A) read with proviso to Article 335 may enable the employer to make a relaxation in regard to the period of evaluation. On the other hand, if the CA Scheme is not a promotion, then it would not be covered either by Article 16 (4) or (4-A) nor by the proviso to Article 335. As reservation permissible under clauses (4) and (4-A) of Article 16 are only relating to appointment of posts by direct recruitment and by promotion respectively, any relaxation/concession relating to evaluation period relating to a matter not relating to direct recruitment or promotion, will be hit by Article 16 (1) and (2 ). ( 20 ) IN decision of the Supreme Court in State of Punjab v Surjit singh, decides the issue. The respondent in that case, belonging to a scheduled Caste, was appointed as a teacher on 1-1-1956. In 1967, 55 teachers were given selection grades. In 1969, another 60 teachers were given the revised selection grade. The respondent contended that reservation for Scheduled Caste candidates was available in granting selection grade and by implementing such reservation, he should be given selection grade from 1967 or in 1969. For this purpose, he relied on two circulars dated 17-9-1956 and 31-5-1971. The High Court accepted his claim. The Supreme Court found that first circular related to promotion to higher post laying emphasis on merit rather than seniority; and the second circular related to reservation for Scheduled caste for filling up selection grade post. The Supreme Court found that both the circulars related to promotion to a higher post and did not relate to granting of selection grades and consequently, rejected the claim of the respondent therein for grant of selection grade by claiming reservation. In that context. The Supreme Court found that both the circulars related to promotion to a higher post and did not relate to granting of selection grades and consequently, rejected the claim of the respondent therein for grant of selection grade by claiming reservation. In that context. Supreme Court held thus:"the subject of the circular is "reservation for Scheduled castes while filling up Selection Grade Posts". The circular makes a clear difference between selection posts and granting of selection grade. It states that selection grade is provided to avoid stagnation at the highest slab in the grade. It implies that when an employee has reached the maximum of his scale or he contimies to work in the same scale for a number of years, he may lose interest on account of stagnation. Therefore, the Government has evolved the system of giving incentives for such an employee by providing for selection grade. This is quite different from promotion to a higher post and there is no question of any reservation in granting a selection grade since that will run counter to the very purpose of providing selection grade". (emphasis supplied) ( 21 ) IN Lalit Mohan Deb and Others v Union of India and Others, supreme Court while accepting that there can be two scales of pay in the same category of posts and that a provision for a selection grade in the same category of posts is done with the object of providing incentive to employees who have no outlets or very limited outlets for promotion, held:"it is well-recognised that a promotion post is a higher post with higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotion should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore created in the interest of greater efficiency". (emphasis sxipplied)21. 1 In Patna University and Others u Awadh Kishore Pd. Yadau and others, the Supreme Court held any Scheme which provides that on the completion of a particular period of service, the employee will move to a higher scale is not comparable to a promotion from a lower post to a higher post. (emphasis sxipplied)21. 1 In Patna University and Others u Awadh Kishore Pd. Yadau and others, the Supreme Court held any Scheme which provides that on the completion of a particular period of service, the employee will move to a higher scale is not comparable to a promotion from a lower post to a higher post. ( 22 ) WE have already noticed that the SC/st Welfare Association had all along contended that Career Advancement Scheme did not involve any promotion but only involved grant of monetary benefit. The institute has also all along stated that Career Advancement Scheme involves only extension of monetary benefit and not promotion. The institute has explained (see para 14 supra) that grant of higher grade under the CA Scheme does not result in the employee getting promoted to a higher post and that placing of an employee in a higher grade is personal to the employee and is not subject to availability of any vacancy in the higher cadre; that an employee continues in the same post and in the same cadre even after grant of higher grade under the CA Scheme; that promotion would arise only when a vacancy in a higher cadre is filled; that the number of persons promoted to a higher post, is restricted to the number of vacancies and is based on relative performance, whereas grant of a higher pay scale by evaluation under the CA Scheme is neither against any vacancy nor based on relative performance, but with reference to the individual performance during a stipulated period, and all who are successful in the evaluation are placed in the higher grade as personal to that employee without reference to the number of posts. Grant of higher grade on evaluation under the CA scheme therefore does not involve promotion to a (higher) post. ( 23 ) THE appellant placed strong reliance on the observation "promotion can be either to a higher pay scale or to a higher post" made by the Supreme Court in Union of India and Another v S. S. Ranade , to contend that grant of a higher pay scale would also amount to "promotion" and therefore reservation (by way of relaxation/concession in the period of evaluation) would be permissible under Article 16 (4-A ). We are afraid that observation of the Supreme Court is relied on, totally out of the context. We are afraid that observation of the Supreme Court is relied on, totally out of the context. Ranade's case, supra, related to age of retirement under the Border Security Force (Seniority, Promotion and superannuation of Officers) Rules, 1978. Rule 9 of the said Rules provided that retirement age of officers holding the rank higher than that of Commandant shall be 58 years and for officers of other rank, it shall be 55 years. Rule 6 provided that a Commandant who has put in a minimum of two years service in the rank of Commandant and has put in a minimum sixteen years 'group A' service, shall be eligible for promotion to the rank of Commandant (Selection Grade ). Relying on rule 6, Ranade contended that he was holding the position of a commandant (Selection Grade) which according to him was a rank higher than that of the Commandant and therefore his age of retirement should be 58 years. Union of India contended that Commandant (Selection Grade) holds the same post as Commandant and sought to retire him at the age of 55 years. That was challenged by Ranade and his contention was upheld by the Delhi High Court. The Supreme Court allowed the appeal by the Union of India holding that Commandant (Selection Grade) does not get the benefit of higher age of retirement under Rule 9 and was liable to retire at the age of 55 years. Ranade's contention was rejected on the following reasoning:"this submission is based on a misunderstanding of what is meant by Selection Grade. Undoubtedly, a Commandant who becomes a Commandant (Selection Grade) secures a promotion to a higher pay scale. But it is a higher pay scale in the same post. The use of the word 'promotion' in Rule 6 and the constitution of a departmental Promotion Committee for selection of Commandant (Selection Grade) in Rule 7, do not necessarily lead to the conclusion that the promotion which is contemplated there is necessarily a promotion to a higher post. Promotion can be either to a higher pay scale or to a higher post. These two rules and the use of the word 'promotion' there do not conclude the issue. Rule 9 provides a hierarchy of posts. Holders of all posts upto and including the level of Commandant retire at the age of 55 years. Promotion can be either to a higher pay scale or to a higher post. These two rules and the use of the word 'promotion' there do not conclude the issue. Rule 9 provides a hierarchy of posts. Holders of all posts upto and including the level of Commandant retire at the age of 55 years. Holders of posts above that of a Commandant retire at the age of 58 years. In order to decide whether a post is either equivalent or is higher or lower than another post, one cannot look only at the pay scale for that post. One must also look at the duties and responsibilities that are attached to such posts. . . . . an element of selection is involved in granting selection grade because there is no automatic promotion to the selection grade pay scale. . . Selection Grade posts are created entirely for the purpose of granting some relief to those who have very limited avenues of getting promotion to a higher post That is why a higher pay or pay scale is granted in the same post. Thus, by its very nature, a selection grade post cannot he considered as a higher post for the purposes of Rule 9. . . . By its very nature a selection grade provides a higher pay or a higher pay scale in the same post. The beneficiary of a selection grade does not thereby occupy a post which is higher in rank than the post earlier occupied by him". (emphasis supplied) thus Supreme Court held that in spite of the use of the word 'promotion' in Rule 6, Ranade was not 'promoted' to a higher post and the use of the word 'promotion' in Rule 6 should be construed to referring to a promotion to a higher scale. Supreme Court expressly negatived the contention that grant of a higher pay scale amounted to a promotion to a higher rank/post. The decision therefore really supports the contention of Employees Association that grant of higher pay scale is not a promotion to a higher post. ( 24 ) IN this context, we may also refer to a decision of the Full Bench of the Kerala High Court in N. G. Prabhu v Chief Justice, where promotion was distinguished from upgradation:"promotion is, of course, appointment, to a different post carrying a higher scale of pay in the service. ( 24 ) IN this context, we may also refer to a decision of the Full Bench of the Kerala High Court in N. G. Prabhu v Chief Justice, where promotion was distinguished from upgradation:"promotion is, of course, appointment, to a different post carrying a higher scale of pay in the service. If, to better the conditions of service of the incumbents in posts in the same category the scale of pay of all the posts in the category is raised, the incumbents would naturally get the higher scale of pay. But, in such a case it may not be proper to characterise the event as a promotion to higher posts though a benefit of a higher scale of pay is obtained by all concerned. In other words, if the upgradation relates to all the posts in a category naturally, there is no sense in calling it a promotion of all the persons in that category. That is because there is no question of appointment from one post to another. Parties continued to hold same posts but get a higher scale of pay. It may be that it is not all the posts in a particular category that are so upgraded, but only a part of it. Normally, the benefit of such upgradation would go to the seniors in the category. They would automatically get a higher scale of pay. That is because though their posts continue in the same category a higher scale of pay is fixed for those posts. It is appropriate then to say that the seniors have been nominated to the Higher Grade which has been so created by upgradation. This phenomena does not differ from the case where all the posts are upgraded and, it appears to us that those who get the higher grade cannot be said to have been 'promoted' because here again there is no question of appointment from one post to another. They continue to hold the same post, but because of seniority in the same post they are given a higher scale of pay". We therefore hold that placement in a higher grade under the CA scheme is not a 'promotion' for purposes of Article 16 (4) or (4-A) or for the purpose of the proviso to Article 335. They continue to hold the same post, but because of seniority in the same post they are given a higher scale of pay". We therefore hold that placement in a higher grade under the CA scheme is not a 'promotion' for purposes of Article 16 (4) or (4-A) or for the purpose of the proviso to Article 335. ( 25 ) WE may mention that even if the CA Scheme is to be treated as one providing for promotion, the resolution dated 26-12-1996 providing for one year relaxation the evaluation period of SC/st employees, cannot be saved for the reasons stated below. 25. 1 In Indra Sawhney's case, supra, the Supreme Court held:"in our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional Scheme and context of Article 16 (4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement or maintenance of efficiency of administration - the admonition of Article 335 therefore, where the State finds it necessary - for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward Classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservations can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular Backward Class it is not necessary to provide reservation of appointment/posts and that it would be sufficient if certain preference or a concession is provided in their favour this can be done under clause (4) itself. In this sense, clause (4) of article 16 is exhaustive of the special provisions that can be made an favour of "the Backward Class of citizens". Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside or clause (4) of Article 16. Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside or clause (4) of Article 16. It would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. . . . However, it would not be permissible to prescribe lower qualifying marks or lesser level of evaluation for the members reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs consistent with the efficiency of administration and the nature of duties attaching to the office concerned in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded above". (emphasis supplied) 25. 2 In S. Vmod Kumar's case, supra, the Supreme Court after referring to Indra Sawhney's case, supra, clarified and reiterated as follows:". . . . so far as the provisions for lower qualifying marks or lesser level of evaluation in the matter of promotion is concerned, it is not permissible under Article 16 (4) in view of the command contained in Article 335 of the Constitution. In other words, even if it is assumed for the sake of argument that reservation is permitted by Article 16 (4) in the matter of promotions, a provision for lower qualifying marks or lesser level of evaluation is not permissible in the matter of promotions, by virtue of Article 335". 25. 3 In view of the said categorical statement in Indra Sawhney's case, supra and Vmod Kumar's case, supra, if the relaxation in evaluation period under the CA Scheme is to be treated as a provision for lesser level of evaluation in the matter of promotion, as now contended by the appellants, then it was barred as the law stood on 28-12-1996. Though clause (4-A) had been inserted in Article before 28-12-1996 (when the impugned resolution is made), the proviso to article 335 was not inserted, as on that date. Though clause (4-A) had been inserted in Article before 28-12-1996 (when the impugned resolution is made), the proviso to article 335 was not inserted, as on that date. Therefore, if relaxation in evaluation in favour of SC/sts under the resolution dated 28-12-1996, is to be treated as being with reference to promotion then it would be unconstitutional and therefore invalid. Be that as it may. ( 26 ) CLAUSE (4) of Article 16 provides for reservation in recruitment in favour of Backward Class of citizens. Clause (4-A) of Article 16 provides for reservation in promotion to any class of posts, in favour of Scheduled castes and Scheduled Tribes. Neither clause (4) nor clause (4-A) enable providing a reservation by way of concession/relaxation (by way of shorter period of evaluation) in regard to grant of monetary relief by selection to a higher grade of pay, wholly unconnected with recruitment or promotion. Hence, adopting a lesser period of evaluation under the ca Scheme cannot be justified with reference to Article 16 (4) or (4-A ). ( 27 ) IT is also necessary at this stage to bear in mind the purpose and object of reservation. In Ajit Singh's case, supra the Supreme Court held thus:"learned Counsel submitted that the founding fathers were conscious that a special provision for reservation was necessary to see that the Backward Classes of citizens were adequately represented in the services. Hence an interpretation which would advance the said objective must be applied. Reliance was also placed on the statement of objects and reasons in connection with the incorporation of Article 16 (4-A ). In fact, all the learned counsel appearing for the reserved candidates contended that the said officers could not be treated as equals to the general candidates and that their backwardness and past social oppression must be borne in mind. Nobody can deny that the above approach is the proper one while dealing with the reserved classed. The primary purpose of article 16 (4) and 16 (4-A) is representation of certain classes in certain posts. However, we must bear in mind and not ignore that there are other provisions, namely, Articles 14, 16 (1) and 335 of the Constitution which are also very important. The Constitution has laid down in Articles 14 and 16 (1) the permissible limits of affirmative action by way of reservation under Article 16 (4) and 16 (4-A ). However, we must bear in mind and not ignore that there are other provisions, namely, Articles 14, 16 (1) and 335 of the Constitution which are also very important. The Constitution has laid down in Articles 14 and 16 (1) the permissible limits of affirmative action by way of reservation under Article 16 (4) and 16 (4-A ). While permitting reservations at the same time, it has also placed certain limitations by way of Articles 14 and 16 (1) so that there is no reverse discrimination. It has also incorporated Article 335 so that the efficiency of administration is not jeopardized. In view of the overwhelming authority right from 1963, we hold that both Article 16 (4) and 16 (4-A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those articles so warranted. Having noticed that Article 16 (1) deals with a fundamental right and Article 16 (4) and Article 16 (4-A) are enabling provisions, we next come to the need for balancing Article 16 (1) and Article 16 (4) and 16 (4-A ). Thus this Court has to ensure that, in matters relating to affirmative action by the State, the rights under Articles 14 and 16 of the individual to equality of opportunity, are not affected. A reasonable balance has to be struck so that the affirmative action does not lead to reverse discrimination. It is necessary to see that the rule of adequate representation in Article 16 (4) for the Backward Classes and the rule of adequate representation in promotion for Scheduled Castes and Scheduled tribes under Article 16 (4-A) do not adversely affect the efficiency in administration. In fact, Article 335 takes care to make this an express constitutional limitation upon the discretion vested in the state while making provision for adequate representation for the scheduled Castes/scheduled Tribes. Thus, in the matter of due representation in service for Backward Classes and Scheduled castes and Scheduled Tribes, maintenance of efficiency of administration is of paramount importance. As pointed in Indra sawhney's case, supra the provisions of the Constitution must be interpreted in such a manner that a sense of competition is cultivated among all service personnel, including the reserved categories". As pointed in Indra sawhney's case, supra the provisions of the Constitution must be interpreted in such a manner that a sense of competition is cultivated among all service personnel, including the reserved categories". (emphasis supplied) the proviso to Article 335 (inserted by the 82nd Amendment) dilutes what is stated above to the extent mentioned in the proviso. But the proviso to Article 335 enables lowering the standards evaluation only for reservation in matters of promotion (to any class or classes of sendees as posts) and not otherwise. If the grant of concession, relaxation or exemption does not relate to providing adequate representation in any class of posts, then, such concession, relaxation or exemption will not be in regard to matters of promotion and clauses (4) and (4-A) of Article 16 will not be attracted. If they are not attracted, validity or constitutionality of the concession, relaxation or exemption will have to be examined with reference to Articles 14 and 16 (1 ). When done so, there can be no doubt that relaxation in the evaluation period leads to discrimination Employees belonging to SC/st will become entitled to a higher pay on the basis of lesser period of service when compared to general category employees, in view of the amendment to the CA scheme by the resolution dated 28-12-1996. Proviso to Article 335 is also of no assistance, as reliance can be placed on it, only if the provision is covered by Article 16 (4) and (4-A) and relates to promotions. The said concession/relaxation is in no way connected with recruitment or promotion. It is in this context, the learned Single Judge has rightly observed that implementation of the Scheme with lesser evaluation period for SC/sts will lead to violation of the principles of 'equal pay for equal work'. ( 28 ) THE implementation of the CA Scheme providing for lesser evaluation period in the case of SC/st cannot be sustained on the touchstone of Articles 14 and 16 (1) in the absence of protection under clauses (4) and (4-A) of Article 16 and the relaxation under proviso to article 335. We therefore uphold the decision of the learned Single judge that granting of relaxation in the evaluation period is unconstitutional. Re: Point No. (ii ). We therefore uphold the decision of the learned Single judge that granting of relaxation in the evaluation period is unconstitutional. Re: Point No. (ii ). ( 29 ) LEARNED Counsel for the appellant submitted that resolution dated 28-12-1996 was passed to give effect to the directions contained in the report of the Commission and the Commission's directions are binding on the Institute. Reliance is placed on clause (5) of Article 338 which enumerate the duties of the Commission. Sub-clause (a) provides that one of the duties of the Commission shall be to investigate and monitor all matters relating to the safeguards provided for the scheduled Castes and Scheduled Tribes under the Constitution or under any other law for the time being in force or under any order of the government and to evaluate the working of such safeguards. It is contended that use of the word 'monitor' in sub-clause (a) of clause (5) would demonstrate that the 'decision' of the Commission is binding. ( 30 ) ON the other hand, learned Counsel for the Employees association relied on a decision of the Supreme Court in All India indian Overseas Bank SC and ST Employees and Others Welfare association v Union of India and Others , wherein it is held that while the Commission has only power to investigate into the matter and enquire into the complaints; and for such purposes, it has the procedural powers of a Civil Court, but has no power to issue any adjudicatory orders. ( 31 ) IT may not be necessary to examine in this case, the question whether any 'decision' or 'direction' issued by the Commission is binding on the Institute. We have already referred to the background in which the matter was considered by the Commission. The SC/st Welfare association gave a complaint to the Commission on 2-1-1996. The institute also wrote to the Commission on 11-6-1996 seeking its intervention to ensure that SC/st Welfare Association does not indulge in any agitation. The Commission gave a report on the basis of discussions held on 3-7-1996. A reading of the report makes it clear that it does not contain any direction but only contains recommendations in the form of opinion of the Commission. Therefore, if cannot be said that the report or the findings contained therein are binding on the Institute. The Commission gave a report on the basis of discussions held on 3-7-1996. A reading of the report makes it clear that it does not contain any direction but only contains recommendations in the form of opinion of the Commission. Therefore, if cannot be said that the report or the findings contained therein are binding on the Institute. Secondly, having regard to the fact that the correctness/validity of the decision/recommendation of the Commission has been examined in a writ proceedings and held to be incorrect and unconstitutional, the question whether it is 'binding' or not does not survive for consideration. Re: Point No. (iii ). ( 32 ) LEARNED Counsel for the appellant lastly contended that Institute had given effect to the resolution dated 28-12-1996 by evaluating the performance of SC/st employees at the end of five years instead of at the end of six years and monetary benefit flowing from such revised evaluation has been disbursed to them. It is stated that such payment was an one time payment and the resolution made it clear that subsequent evaluation will depend on the recommendation of the Fifth central Pay Commission and that further evaluation beyond 31-12-1995 will not be governed by the said resolution, but depend on the future evaluation policy of the Institute to be formulated by the Council, after adoption of the recommendations of the Fifth Central Pay Commission and the report of the Standing Committee appointed by the Director to examine the anomalies. He submitted that after a monetary benefit has been extended to a group of employees, if for any reason, it is found that the such employees are not entitled to the said monetary benefit, the payment already made should not be recovered. Reliance is placed on the decisions of the Supreme Court in State of Andhra Pradesh v G. Sreenivasa Rao', Shyarn Babu Verma v Union of India and Sahib Ram v State of Haryana. 32. 1 In G. Sreenivasa Rao's case, supra, higher pay granted to certain employees in pursuance of the orders of the High Court/tribunal was found to be unjustified by the Supreme Court. 32. 1 In G. Sreenivasa Rao's case, supra, higher pay granted to certain employees in pursuance of the orders of the High Court/tribunal was found to be unjustified by the Supreme Court. However, while allowing the appeal, the Supreme Court directed not to recover the additional salary already paid to such employees pursuant to the orders of the High court/tribunal (up to and inclusive of the month in which the Supreme court rendered its decision) as it was likely to cause hardship to them. No principle as such was evolved in regard to recovery in such matters. 32. 2 In Shyam Babu Verma's case, supra higher pay scales were erroneously given to the petitioners since 1973. By subsequent orders dated 15-6-1984, the department re-fixed the pay of the petitioners in a lower scale from 1973 and directed recovery of the excess payments. The supreme Court held that the petitioners were only entitled to the lower pay scale with effect from 1-1-1973. But, as the petitioners had received higher pay scale since 1973 due to no fault of theirs, and as the scale was being reduced in the year 1984, with effect from 1973, it will not be just and proper to recover the excess amount already paid to the petitioners. Consequently, the Supreme Court directed that "no steps should be taken to recover or to adjust and excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same". 32. 3 A similar view was taken in Sahib Ram's case, supra. It was held that even through the payment of salary was made at the higher scale by granting wrong relaxation, as such excess payment was not on account of any misrepresentation by the employee, but on account of wrong construction of the relevant rule/order by the department, the excess amount paid should not be recovered from the employee. ( 33 ) WE have carefully examined the said decisions. We find that the said decisions may not be of any assistance to the appellant in these cases. According to the appellant, impugned resolution dated 28-12-1996 was passed on the recommendations made by the Commission. The employees Association had challenged the recommendations of the commission even before the Institute gave effect to it by passing the resolution dated 28-12-1996. We find that the said decisions may not be of any assistance to the appellant in these cases. According to the appellant, impugned resolution dated 28-12-1996 was passed on the recommendations made by the Commission. The employees Association had challenged the recommendations of the commission even before the Institute gave effect to it by passing the resolution dated 28-12-1996. When the resolution was passed by the institute on 28-12-1996, Employees Association amended their petition (W. P. No. 24538 of 1996) adding a prayer challenging the said resolution dated 28-12-1996 also. However, as there was no stay, benefit of the resolution was extended to the SC/st employees and in pursuance of it payment was also made at the higher scale. When the learned Single judge quashed the recommendations of the Commission as also the resolution dated 28-12-1996 passed by the Institute, the Institute initiated action to recover the excess (difference) amount paid to the scheduled Castes/scheduled Tribes employees. On the request of the appellants, an interim order was passed on 16-2-1999 staying recovery of the excess amount which became payable by the SC/st employees in pursuance of the orders of the learned Single Judge. The payment having been made by the Institute during the pendency of the litigation challenging the resolution which authorised such payment, the principles laid down in Sreenivasa Rao's case, supra', Shyam Babu verma's case, supra and Sahib Ram's case, supra, will not apply. ( 34 ) THE Employees Association representing the general category employees have been agitating in regard to the discrimination. Whenever there is discrimination, there are two ways of dealing with the matter. One is to treat the parties who are complaining of the discrimination on par with the persons who were giving the benefit i. e. , by extending same benefit of evaluation at the end of five years to the general category of employees also if permissible in law. Second is to quash the action of the authority which led to the complaint of discrimination, if such action is illegal. The Supreme Court in gursharan Singh and Others v New Delhi Municipal Committee and others, has held as follows:"there appears to be some confusion in respect of the scope of article 14 of the Constitution which guarantees equality before law to all citizens. The Supreme Court in gursharan Singh and Others v New Delhi Municipal Committee and others, has held as follows:"there appears to be some confusion in respect of the scope of article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are sanctioned by law in their favour on principles of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination". ( 35 ) THUS, if the act complained of is illegal act, the question of repeating the act in the case of the aggrieved complainant will not arise as that will amount to perpetuation of the illegality. ( 35 ) THUS, if the act complained of is illegal act, the question of repeating the act in the case of the aggrieved complainant will not arise as that will amount to perpetuation of the illegality. But, where the illegality is not in the act of giving the benefit to a class of persons, but in failing to give such benefit to others similarly situated persons, it amounts to discrimination and the authority has the choice of either withdrawing the benefit given to a specific class which led to the complaint of discrimination, or extend the same benefit to others so as to delete discrimination. For example, if the Institute gives the one year relaxation to other employees also, then the illegality will cease to exist, as the Institute has the discretion to revise the six years evaluation scheme into a five years evaluation Scheme for all employees. In this case, therefore the Institute has the choice of either recovering the excess amount paid to the SC/st employees as a consequence of quashing of the resolution dated 28-12-1996 or to extend the same benefit to other employees also, so that the illegality attached to the resolution will stand removed. We therefore direct the Institute to take a decision in the matter within three months, by choosing one of the two courses and implement it within six months from this date. ( 36 ) SUBJECT to the choice given to the Institute in para 35 above, the appeals are dismissed as having no merit. Parties to bear their respective costs. --- *** --- .