JUDGMENT : - Mansoor Ahmad Mir, Chief Justice Challenge in this Letters Patent Appeal is to the judgment and order, dated 7th April, 2009, passed by the learned Single Judge in CWP (T) No. 1985 of 2008 (OA No. 890 of 1991), titled as Rajinder Upadhaya and others versus H.P. State Electricity Board (hereinafter referred to as “the impugned judgment”) on the grounds taken in the memo of appeal. 2. The writ petitioners-respondents herein invoked the jurisdiction of the erstwhile H.P. State Administrative Tribunal in the year 1991 by the medium of Original Application No. 890 of 1991 for grant of reliefs mentioned in the relief clause of the said Original Application on the grounds taken in the said petition. After abolition of the H.P. State Administrative Tribunal, was transferred to this Court, came to be diarized as CWP (T) No. 1985 of 2008. It is apt to reproduce the following reliefs amongst the others herein: “(i) To grant the initial revised pay scale of Rs. 800- 1400/- to the petitioners with effect from joining of their duties in the respondent HPSEB. (ii) To grant corresponding revised pay scale of Rs. 2100-3700 to the petitioners from 1.1.1986 onwards. (iii) To grant Special Pay of Rs. 200/- per month to the petitioners, since the time of their joining duties in the respondent department. (iv) To direct the respondent to modify the Annexure P-6 to the above said extent in respect of Law Officers (Petitioners).” 3. The writ petitioners have laid foundation for grant of the said reliefs on the ground that they came to be appointed as Law Officers in the H.P. State Electricity Board (hereinafter referred to as “the HPSEB”) in the year 1989 on different dates, were working, at the time of filing of the Original Application, as Law Officers Grade-II. It is averred that the post of Law Officer Grade-II was equivalent to Circle Scale Superintendent (Non-Gazetted) for the Legal Unit of the HPSEB. In terms of Office Order No. 107/HPSEB(SECTT)/85, dated 3rd September, 1985 (Annexure P-1), the post of Law Officer Grade-II was the feeding cadre to the post of Law Officer Grade-I. 4. The writ petitioners came to be appointed as Law Officers Grade-II and vide Notification No. 95/HPSEB(SECTT.)/89, dated 26th August, 1989, revised the pay scale of Law Officers Grade-II from Rs. 700-1200 to Rs. The writ petitioners came to be appointed as Law Officers Grade-II and vide Notification No. 95/HPSEB(SECTT.)/89, dated 26th August, 1989, revised the pay scale of Law Officers Grade-II from Rs. 700-1200 to Rs. 800-1400, but were deprived of the said benefit of the pay scale revision. It is further contended that the revision of pay scale was made by the HPSEB from time to time in deviation to Punjab State Electricity Board's (hereinafter referred to as “the PSEB”) pay scale pattern, the post of Circle Scale Superintendent is equivalent to the post of Law Officer, is in the pay scale of Rs. 2100- 3700 as per the revised pay scale, but the writ petitioners have been denied the said pay scale without any reason and the writ petitioners are also entitled to the same. Further, that the HPSEB has also granted Special pay to the category of Law Officers to the tune of Rs. 100/- per month in terms of Office Order No. 56-HPSEB(SECTT)/88, dated 8th July, 1988 (Annexure P-4), the writ petitioners were also entitled to the said benefit, but the same has not been granted to them. 5. It is also averred that the duties and responsibilities of the writ petitioners are almost similar to that of Law Officers Grade-I, the Law Officers Grade-I are enjoying the benefit of Special Pay denied to the writ petitioners without any reason. The writ petitioners have made representations, which were denied. 6. Precisely, the case of the writ petitioners is that the posts of Circle Scale Superintendent and Law Officer Grade-II are equivalent and the duties and responsibilities are same, but despite all that, they have been denied the pay scale in the grade of Rs. 2100-3700 and further, they are also entitled to Special Pay, as granted to the Law Officers Grade-I, because Law Officers Grade-I and Law Officers Grade-II are performing the same duties and responsibilities. 7. The writ respondent-HPSEB resisted the Original Application by filing reply. It is averred in the reply that the writ petitioners were not entitled to the reliefs claimed as they were appointed in the year 1989, they accepted their appointment orders without any objection and cannot now make u-turn after accepting the appointment orders. 7. The writ respondent-HPSEB resisted the Original Application by filing reply. It is averred in the reply that the writ petitioners were not entitled to the reliefs claimed as they were appointed in the year 1989, they accepted their appointment orders without any objection and cannot now make u-turn after accepting the appointment orders. Further, it is contended that the duties and responsibilities of the Circle Scale Superintendent and the Law Officer Grade-II is not similar, these are two different posts and their duties and responsibilities are also different. No Special Pay is attached to the post of Law Officer Grade-II and even it was not granted to them in terms of their appointment orders. The HPSEB has given the details of their appointment orders. It is apt to reproduce relevant portion of para 1 and para 2 of the legal submissions of the reply herein: “Sr. Name of Apptt. Order Date of Designation Pay Scale No. applicant No. & Date. Joining .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-..-.-.-.-.-.-.-.-.-.- 1. 2. 3. 4. 5. 6. .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-..-.-.-.-.-.-.-.-.-.- 1. Rajinder Kumar HPSEB(SECTT)/ 25/7/89 Law Rs. 700-1200 (Applicant 6- /89-95538- Officer. No. 1). 41 dt. 25/7/89 2. Madan Lal HPSEB(SECTT)/ 18/7/89 Law Rs. 700-1200 (Applicant 6-73/89-72549- Officer. No. 2). 52 dt. 13/6/89 3. Ramesh Chauhan HPSEB(SECTT)/ 16/12/89 Law Rs. 700-1200 (Applicant 6-73/89-172412- Officer. No. 3). 17 dt. 16/12/89 The applicants herein accepted the offer(s)of appointment on the dates indicated herein above and thus this arrangement culminated into a contract of employment from which the parties hereto are bound under a Legal obligation and thus cannot resile from the same. Since the applicants have accepted the offers so extended to them, therefore, they are estopped by their express act, conduct and acquiescence to file and maintain the present application against the replying respondent. Therefore, in these facts and circumstances, the application is not maintainable and it is accordingly prayed that the same be dismissed summarily. 2. That the applicants herein were offered the post of Law officer which was earlier the post of Law Officer Gr.II in the scale of Rs. 700-1200. Order No. 55/HPSEB(SECTT)/81- dated 12/8/81 is placed on record to show this position which is annexed at Annexure R-1. This post was re-designated as Law Officer vide Order No. 114/HPSEB(SECTT)/84 dated 5/7/1984 in the same scale of Rs. 700-1200. (Annexure P-3 attached with the O.A.). Thus, it entailed only re-designation and nothing more. 700-1200. Order No. 55/HPSEB(SECTT)/81- dated 12/8/81 is placed on record to show this position which is annexed at Annexure R-1. This post was re-designated as Law Officer vide Order No. 114/HPSEB(SECTT)/84 dated 5/7/1984 in the same scale of Rs. 700-1200. (Annexure P-3 attached with the O.A.). Thus, it entailed only re-designation and nothing more. The pay and allowances and the duties and responsibilities remained un-changed. The claim of the applicants qua equating this post with the post of Circle Scale Superintendent is there fore factually incorrect, legally mis-conceived and is based on mis-reading and mis-conception. It may be relevant to state that the Circle Scale Superintendent is promoted in the following channels, in accordance with the R & P Regulations:- 1. Lower Division Clerk/Meter Reader/Cashier Promoted as 2. Upper Division Clerk. Promoted as 3. Head Clerk/Head Assistant/Internal Auditor/Assistant. Promoted as 4. Circle Scale Superintendent. Promoted as 5. Section Officer. From the above, it is clearly discernible that the reliefs herein prayed are devoid of merit and consequently are liable to be rejected in a summary way, and it is accordingly prayed.” 8. The Writ Court, after examining the pleadings and the Annexures annexed with the pleadings, held that the writ petitioners were entitled to the revised pay scale with effect from the date of initial appointment as per Office Order No. 18 HPSEB (SECTT.)/91 dated 5th March, 1991, and also granted Special Pay to the tune of Rs. 200/- per month. It is apt to reproduce the operative portion of the judgment herein: “For the reasons aforesaid, the petition is allowed the respondent-Board is hereby directed to grant revised pay scale to the petitioners w.e.f. the date of their initial appointment as per office order No. 18 HPSEB (SECTT.)/91 dated 5.3.1991 along with the Special pay of Rs. 200/- per month, within a period of two month from today, failing which, it shall carry interest at the rate of 9% per annum from the date when it fell due. Accordingly, the petition is allowed to the above extent and stands disposed of.” 9. The Writ Court has not granted the other reliefs prayed for by the writ petitioners. The writ petitioners have not questioned the impugned judgment, however, the writ respondent-appellant-HPSEB has questioned the same by the medium of the present Letters Patent Appeal. 10. Accordingly, the petition is allowed to the above extent and stands disposed of.” 9. The Writ Court has not granted the other reliefs prayed for by the writ petitioners. The writ petitioners have not questioned the impugned judgment, however, the writ respondent-appellant-HPSEB has questioned the same by the medium of the present Letters Patent Appeal. 10. The Writ Court has not granted the pay scales granted to Circle Scale Superintendent or the Law Officer Grade-I, but has held that they are entitled to the pay scale of Law Officer Grade-II, the particulars of which have been mentioned in Annexure P-6, and also to the Special Pay at par with the Law Officer Grade-I. 11. Learned counsel for the appellant-HPSEB submitted that he is under instructions to make a statement not to press the impugned judgment so far it relates to granting of revised pay scale to the writ petitioners with effect from the date of their initial appointment in terms of Office Order No. 18 HPSEB (SECTT.)/91 dated 5th March, 1991. 12. Thus, the only question to be determined in this appeal is – whether the learned Single Judge has rightly directed the HPSEB to grant Special Pay to the tune of Rs. 200/- per month to the writ petitioners? 13. We have considered the issue and are of the view that the Writ Court has fallen in error in passing the said direction. 14. Admittedly, the writ petitioners came to be appointed in the year 1989 and they accepted the appointment orders, no such Special Pay was attached to the post at that time. Thus, the writ petitioners are caught by doctrine of waiver, conduct and acquiescence. 15. Our this view is fortified by the judgment of this Court in a bunch of two appeals, LPA No. 48 of 2011 being the lead case, titled as Satija Rajesh N versus State of Himachal Pradesh and another, decided on 26th August, 2014, wherein this Court has taken into consideration the various judgments rendered by the Apex Court. 16. Further, in terms of Annexure P-1, dated 3rd September, 1985, the post of Circle Scale Superintendent (Non-Gazetted) was carrying Special Pay, but vide Annexure P-2, dated 26th August, 1989, the pay of Law Officer Grade-II was revised to Rs. 800-1400. 16. Further, in terms of Annexure P-1, dated 3rd September, 1985, the post of Circle Scale Superintendent (Non-Gazetted) was carrying Special Pay, but vide Annexure P-2, dated 26th August, 1989, the pay of Law Officer Grade-II was revised to Rs. 800-1400. The said post is not carrying any Special Pay in terms of the revision, which was made with effect from 1st January, 1978, though prior to 1st January, 1978, the pay scale of Law Officer Grade-II was Rs. 225-500 plus Rs. 50/- as Special Pay per month, which was taken away in terms of Annexure P-2. 17. Annexure P-2 is not the subject matter of the writ petition nor has been questioned. The writ petitioners cannot question Annexure P-2 because they came to be appointed thereafter and accepted the appointment orders. Thus, as discussed hereinabove, are caught by their own conduct. 18. In terms of Office Order No. 18/HPSEB (SECTT)/91, dated 5th March, 1991 (Annexure P-6), HPSEB had made revision of pay scales of the categories of employees with effect from 1st January, 1986. The Law Officer (previously designated as Law Officer Grade-II) and Law Officer Grade I are figuring at serial Nos. 6 and 7 of the said office order. The pay scale of Law Officer (previously designated as Law Officer Grade-II) was revised to Rs. 2000-3500 without any Special Pay, whereas the pay scale of Law Officer Grade-I was revised in the grade of Rs. 2200-4000 with Special Pay to the tune of Rs. 200/-. 19. The writ petitioners, though, have questioned the said notification/office order being discriminatory on the grounds taken in the memo of the Original Application,that relief was not granted and the writ petitioners have not questioned the same, has attained finality. 20. The writ petitioners have based their case on the foundation that the post of Law Officer was equivalent to the post of Circle Scale Superintendent, had sought relief on that ground and, thereafter, they pleaded that they are entitled to that grade. They also sought relief of granting Special Pay on the ground that they are performing the similar duties, which the Law Officer Grade-I is performing. 21. They also sought relief of granting Special Pay on the ground that they are performing the similar duties, which the Law Officer Grade-I is performing. 21. The Writ Court/learned Single Judge has not marshalled out the facts and merits of the case read with the office orders/notifications to the effect whether the duties and responsibilities of the writ petitioners were similar to that of the Circle Scale Superintendent in order to determine the claim of parity. 22. The Apex Court in Hukum Chand Gupta versus Director General, Indian Council of Agricultural Research and others, reported in (2012) 12 Supreme Court Cases 666, held as to how parity can be claimed or granted. It is apt to reproduce relevant portion of para 20 of the judgment herein: 20. …............. There cannot be straitjacket formula for holding that two posts having the same nomenclature would have to be given the same pay scale. Prescription of pay scales on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts. Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. Neither the Central Administrative Tribunal nor a writ court would normally venture to substitute its own opinion for the opinions rendered by the experts. The Tribunal or the writ court would lack the necessary expertise to undertake the complex exercise of equation of posts or the pay scales.” 23. The Apex Court in another case titled as State of Madhya Pradesh and others versus Ramesh Chandra Bajpai, reported in (2009) 13 Supreme Court Cases 635, held that the Court has to consider factors like the source and mode of recruitment/appointment, qualifications, nature of work, value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. It is apt to reproduce para 15 of the judgment herein: “15. In our view, the approach adopted by the learned Single Judge and the Division Bench is clearly erroneous. It is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. It is apt to reproduce para 15 of the judgment herein: “15. In our view, the approach adopted by the learned Single Judge and the Division Bench is clearly erroneous. It is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of quality in the matter of pay scales. The court has to consider the factors like the source and mode of recruitment/appointment, qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the quality clause can be invoked in the matter of pay scales only when there is wholesale identity between the holds of two posts.” 24. The Apex Court in the case titled as Steel Authority of India Limited and others versus Dibyendu Battacharya, reported in (2011) 11 Supreme Court Cases 122, has discussed the development of law and the judgments made by the Apex Court right from the year 1968, in paras 18 to 29 of the judgment. It is apt to reproduce paras 30, 31 and 33 of the judgment herein: 30. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties. 31. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties. 31. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work. 33. By the impugned order, the respondent has not been granted the post in Grade E-1 but salary equivalent to that of Shri B.V. Prabhakar has been granted to the Respondent. The order itself is mutually inconsistent and contradictory. The representation of the respondent had been for waiving the criteria meaning thereby that the respondent sought a relaxation in the eligibility criteria for the post in Grade E-1. It is evident from the representation itself that the respondent never possessed the eligibility for the post of Grade E-1. The Law does not prohibit an employer to have different grade of posts in two different units owned by him. Every unit is an independent entity for the purpose of making recruitment of most of its employees. The respondent had not been appointed in centralised services of the company. 25. The Apex Court in Union Territory Administration, Chandigarh and others versus Manju Mathur and another, reported in (2011) 2 Supreme Court Cases 452, held that similarity of designation or nature or quantum of work is not determinative of entitlement to equality in pay scales. 26. The respondent had not been appointed in centralised services of the company. 25. The Apex Court in Union Territory Administration, Chandigarh and others versus Manju Mathur and another, reported in (2011) 2 Supreme Court Cases 452, held that similarity of designation or nature or quantum of work is not determinative of entitlement to equality in pay scales. 26. The Apex Court in the case titled as State of Punjab & Anr. versus Surjit Singh & Ors., reported in 2009 AIR SCW 6759, has discussed the development of law right from the year 1960 till 2009. It is apt to reproduce para 30 of the judgment herein: “30. Mr. Swarup may or may not be entirely correct in projecting three purported different views of this Court having regard to the accepted principle of law that ratio of a decision must be culled out from reading it in its entirety and not from a part thereof. It is no longer in doubt or dispute that grant of the benefit of the doctrine of 'equal pay for equal work' depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity.” 27. It would also be profitable to reproduce para 13 of the judgment rendered by the Apex Court in New Delhi Municipal Council versus Pan Singh & Ors., reported in 2007 AIR SCW 1705, herein: “13. They, thus, formed a class by themselves. A cut-off date having been fixed by the Tribunal, those who were thus not similarly situated, were to be treated to have formed a different class. They could not be treated alike with the others. The High Court, unfortunately, has not considered this aspect of the matter.” 28. The Apex Court in a case titled as State of Haryana and others versus Charanjit Singh and others etc. etc., reported in AIR 2006 Supreme Court 161, held that the principle of 'equal pay for equal work' has no mechanical application in every case. It is apt to reproduce para 17 of the judgment herein: “17. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. It is apt to reproduce para 17 of the judgment herein: “17. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors.” 29. Applying the test to the instant case, no such case has been carved out by the writ petitioners. 30. It was for the writ petitioners to plead, marshal and prove that they were performing the similar duties as the Circle Scale Superintendent was performing and the duties, which are being performed by the Law Officer Grade-I are being performed by them also. 31. Having said so, the impugned judgment merits to be set aside so far it relates to the grant of Special Pay. Accordingly, the appeal is partly allowed and the impugned judgment is set aside so far it relates to grant of Special Pay to the writ petitioners. Pending applications, if any, are also disposed of.