Discrimination in the grant of pay scales between employees in the same cadre or service without any tangible differentia is impermissible and amounts to hostile discrimination, violating the principle of equal pay for equal work enshrined in Article 39 (d) of the Constitution of India.

( 1 ) THE background : this appeal is founded on the principle of Article 39 (d) of the Constitution of India, namely, equal pay for equal work. The grievances of the petitioners are that though had been on the same scale of Rs. 300-600/- (prior to the ROPA rules, 1981) were recommended in scale of Rs. 380-910/- under the ROPA Rules, 1981 along with the Inspector, Co-operative Societies, Extension Officer, panchayat; Inspector, Statistics (NES Directorate); Research Assistant, Dairy service; Sanitary Inspector, Grade-I, in implementing ROPA Rules, 1981, the inspector, Minimum Wages (Agriculture) was retained in scale of rs. 380 - 910/- (Scale 9), whereas the rest were given scale of Rs. 425 - 1050/- (Scale 10 ). Though discharging similar responsibility or in some cases more responsibilities, yet their claim for upgradation to Scale 10 from Scale 9 at par with the other similarly situated inspectors were turned down. The Third Pay Commission simply recommended the corresponding scale of ROPA, 1986. The Review committee recommended Scale 10 for the same service with effect from 1st of january, 1986. But the State Government did not accept the same. The Fourth pay Commission again directed grant of same scale to all these officers of the west Bengal Subordinate Labour Service and recommended Scale 16. (1 ). This subsequent recommendation of the Fourth Pay Commission was sought to be brought on record by way of an application for leave to incorporate subsequent events through which the relevant materials have since been brought on record and which were heard along with the appeal. Thus, at the same time, some of the other officers of the same cadre, who were granted scale 9 obtained Scale 10 through writ petitions filed before this Court pursuant to orders passed therein directing grant of Scale 10. In some cases the government itself had given Scale 10 to some of the other officers. In this background the petitioners claimed that they are entitled to a parity and identical scale with those of their counterparts, who were in scale of Rs. 300 - 600/ -. Reliance was placed on various materials and decisions to support the respective contentions, which we would be dealing with at appropriate stage. (2 ). The writ petition filed by the writ petitioners claiming the above relief was dismissed on 1982 on the ground that the same involved certain question of fact which the Writ Court could not take upon itself to determine and that the matters were likely to be considered by the newly appointed Pay Commission in the near future before which the question might be agitated. (3 ). Against this judgment the present appeal has since been preferred. Admittedly, the grievances of the petitioners were based on the ROPA, 1981, namely, the Second Pay Commission, whereafter the Third Pay Commission (ROPA, 1986) had intervened at the time when the rule was discharged, since appealed against, and during the pendency of the appeal, the Fourth Pay commission (ROPA, 1991) had intervened. In these circumstances, it is the question as to whether any fruitful result can be had on the strength of the present appeal. Appellants' contention :

( 2 ) MR. Saktinath Mukherjee, learned Senior Counsel for the appellants, however, contended that the subsequent events can very well be taken note of in order to do complete justice when the facts are not in dispute and the materials upon which reliance is placed are matters of record. In support of his contention, he relied on the decisions in Ram Ratan Sahu and Ors. vs. Mohant Sahu and Ors. , 1907 (6) CLJ 74; Nair Service Society Ltd. vs. K. C. Alexander and Ors. , AIR 1968 sc 1165 and Lekh Raj vs. Muni Lal and Ors. , 2001 (2) SCC 762. Relying on the decision in Purshottam Lal and Ors. vs. Union of India and Anr. , AIR 1973 SC 1088, he contended that if the recommendation of the Pay Commission is accepted, it is to be accepted for all. Placing reliance upon Employees of Tannery and Footwear Corporatio