# THE STATE OF MADHYA PRADESH v. G. C. MANDA WAR

- **Citation:** [1955] 1 S.C.R. 599
- **Court:** Supreme Court of India
- **Decided:** 1954-05-13
- **Case number:** Civil Appeal No. 2 of 1954
- **Bench:** Mehr Chand Mahajan C.J, MuKHERJEA, VIVIAN BosE, Bhagwati, Venkatarama Ayyar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-madhya-pradesh-v-g-c-manda-war-365
- **Pages:** 9

## Headnote

599
Constitution of India, At·t.
14-Scale of dearness
allowance
fixed by Provincial Government-Different from the scale fixed by
Central Government-Whether discriminatory-Rule 44 of
Fundamental Rules-Grant of dearness allo111ance-Whether a right or a
matter of discretion-Mandamus or any other Writ under Art. 226
of the Constitution.
The Government of Central Provinces and Berar (Now State
of !lladhya Pradesh)
fixed
in 1948
a sca1e of dearness allowance
for its servants which
though
practically
identical with the scale
of dearness allowance fixed
by
Central Government in respect of
salaries
over Rs. 400 per mensem was less than it in
respect of
salaries
for
Rs. 400 per mensem
or less.
The petitioner-State
government servant--challenged the validity of the order
of the
State
Government on
the
ground that
his
fundamental
right
under Art. 14 of the Constitution had been
violated
inasmuch as
he had a right to be equally treated
with
the Central Government Servants similarly situated.
Held, that under the provisions of Rule 44 of the Fundamental Rules it is a
matter of discretion with the local Government whether it will grant dearness allowance to any
Government
serYant and if so how much. It imposes no duty on the State to
grant it and therefore
no mandamus can issue to compel the State
to grant it nor can any other writ or direction be issued in respect
oi it as there is no right
in the
Government servant
which is
capable of being protected or enforced.
Article 14 does not authorise the striking down of a law of
one State on the ground that in contrast with a law of another
State on the same
subject its provisions
are discriminatory. Nor
does it contemplate a law of the Centre or of the State dealing
with
similar
subjects
being
held to be
unconstitutional
by
a
process of comparative study of the provisions of two enactments.
The sources of authority for the two statutes
being different,
Artide 14 can have no application.
Therefore the scale of dearness allowance
sanctioned by the
Centred
Government can furnish
no ground for holding that the
'"i
aJlow;rnce sanctioned by the Government of Central Provinces and
Berar is
repugnant to
Article 14.
The State
Government was
entitled
to fix the Government of India rates for one slab and fix
different rates for another slab.
1954
May 13
1954
The State of
Madhya Pradesh
v.
G. C. Mandawar.
600
SlJPREME COURT REPORTS
[1955]
The Punjab Province v. Pandit Tara Chand ([1947] F.C.R. 89),
and State of Bihar v. Abdul Majid ([1954] S.C.R. 786) distinguished.
Civ1L
APPELLATE
JuR1so1cTION :
Civil
Appeal
No. 2 of 1954.
Appeal under article 132(1)
of the Constitution
of India from the Judgment
~nd Order dated the 10th
September, 1953, of the I:ligh
Court of Judicature at
Nagpur in Miscellaneous Petition No. 123 of 1953.
M. C. Setalvad, Attorney-General for India (T. P.
Naik and I. N. Shroff, with him) for the appellant.
M. K. Nambiar (Rajinder Narain,
with him) for
the respondent.
B. Sen and P. K. Bose for
the Intervener
(State
of West Bengal).
1954.
May
13. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-The point for decision in
this appeal is whether a Resolution of the Government
of Central Provinces ancl
Berar, now Madhya Pradesh,
dated 16th
September, 1948,
fixing a scale of dearness
allowance to be paid to its servants is repugnant to
article 14 of the Constitution.
The circt•mstances under which the above Resolution
came to be adopted may be briefly mentioned. Consequent on the war, there was a phenomenal rise in the
price of foodstuffs
and of other essential commodities,
and among the persons worst hit by it were the
Government· servants.
As a measure
of relief to them,
the Central and the Provincial Government sanctioned
a grant of grain allowances to them under various
Resolutions passed in 1940. The scheme adopted
by
the
Central
Government
was
that
its
employees
stationed in various Provinces received the same benefit
as
the
respective
Provincial
Government employees.
But
th

## Text

-
S.C.R.
J
SUPREME COURT REPORTS
THE STATE OF MADHYA PRADESH
v.
G. C. MANDA WAR.
[MEHR CHAND MAHAJAN C.J., MuKHERJEA,
VIVIAN BosE, BHAGWATI and
VENKATARAMA AYYAR JJ.J
599
Constitution of India, At·t.
14-Scale of dearness
allowance
fixed by Provincial Government-Different from the scale fixed by
Central Government-Whether discriminatory-Rule 44 of
Fundamental Rules-Grant of dearness allo111ance-Whether a right or a
matter of discretion-Mandamus or any other Writ under Art. 226
of the Constitution.
The Government of Central Provinces and Berar (Now State
of !lladhya Pradesh)
fixed
in 1948
a sca1e of dearness allowance
for its servants which
though
practically
identical with the scale
of dearness allowance fixed
by
Central Government in respect of
salaries
over Rs. 400 per mensem was less than it in
respect of
salaries
for
Rs. 400 per mensem
or less.
The petitioner-State
government servant--challenged the validity of the order
of the
State
Government on
the
ground that
his
fundamental
right
under Art. 14 of the Constitution had been
violated
inasmuch as
he had a right to be equally treated
with
the Central Government Servants similarly situated.
Held, that under the provisions of Rule 44 of the Fundamental Rules it is a
matter of discretion with the local Government whether it will grant dearness allowance to any
Government
serYant and if so how much. It imposes no duty on the State to
grant it and therefore
no mandamus can issue to compel the State
to grant it nor can any other writ or direction be issued in respect
oi it as there is no right
in the
Government servant
which is
capable of being protected or enforced.
Article 14 does not authorise the striking down of a law of
one State on the ground that in contrast with a law of another
State on the same
subject its provisions
are discriminatory. Nor
does it contemplate a law of the Centre or of the State dealing
with
similar
subjects
being
held to be
unconstitutional
by
a
process of comparative study of the provisions of two enactments.
The sources of authority for the two statutes
being different,
Artide 14 can have no application.
Therefore the scale of dearness allowance
sanctioned by the
Centred
Government can furnish
no ground for holding that the
'"i
aJlow;rnce sanctioned by the Government of Central Provinces and
Berar is
repugnant to
Article 14.
The State
Government was
entitled
to fix the Government of India rates for one slab and fix
different rates for another slab.
1954
May 13
1954
The State of
Madhya Pradesh
v.
G. C. Mandawar.
600
SlJPREME COURT REPORTS
[1955]
The Punjab Province v. Pandit Tara Chand ([1947] F.C.R. 89),
and State of Bihar v. Abdul Majid ([1954] S.C.R. 786) distinguished.
Civ1L
APPELLATE
JuR1so1cTION :
Civil
Appeal
No. 2 of 1954.
Appeal under article 132(1)
of the Constitution
of India from the Judgment
~nd Order dated the 10th
September, 1953, of the I:ligh
Court of Judicature at
Nagpur in Miscellaneous Petition No. 123 of 1953.
M. C. Setalvad, Attorney-General for India (T. P.
Naik and I. N. Shroff, with him) for the appellant.
M. K. Nambiar (Rajinder Narain,
with him) for
the respondent.
B. Sen and P. K. Bose for
the Intervener
(State
of West Bengal).
1954.
May
13. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-The point for decision in
this appeal is whether a Resolution of the Government
of Central Provinces ancl
Berar, now Madhya Pradesh,
dated 16th
September, 1948,
fixing a scale of dearness
allowance to be paid to its servants is repugnant to
article 14 of the Constitution.
The circt•mstances under which the above Resolution
came to be adopted may be briefly mentioned. Consequent on the war, there was a phenomenal rise in the
price of foodstuffs
and of other essential commodities,
and among the persons worst hit by it were the
Government· servants.
As a measure
of relief to them,
the Central and the Provincial Government sanctioned
a grant of grain allowances to them under various
Resolutions passed in 1940. The scheme adopted
by
the
Central
Government
was
that
its
employees
stationed in various Provinces received the same benefit
as
the
respective
Provincial
Government employees.
But
this
scheme was
found
to
be
unsuitable
for
employees · of the Central Government, as the allowances
granted by the Provincial Governments were not
uniform. On 10th May, 1946, the Central Government
appointed a
Central
Pay
Commission,
hereinafter
referred to as
the Commission, to enquire into and
-
-
;. -
S.C.R.
SUPREME COURT REPORTS
601
report on the conditions of service of its employees
with particular reference to "the structure of their pay
scales and standards of remuneration with the object
of
achieving
a
rationalisation,
simplification
and
uniformity
to
the
fullest
degree
possible."
The
Commission, which was presided over by Sir S. Varadachariar, recommended by . its report dated 3rd May,
1947,
the grant of
dearness allowance on a specified
scale. On 27th May, 1947, the Government of Central
Provinces
and Berar
appointed
a
Pay Committee,
hereinafrer referred to as the Committee, "to examine
the recommendations of the Central Pay Commission
and to report the extent to which and the modifications
subject
to which
these
recommendations
should
be
accepted
by
the
Provincial
Government,
so far
as
Government servants under its rule-making control are
concerned."
By its report dated 22nd
June, 1948,
the
Committee
recommended
the
grant
of
dearness
allowance on a scale which, though practically identical
with that adopted by the Commission in respect of
salaries above Rs. 400 per mensem, was less than it as
regards salaries
of Rs. 400 per mensem or less. These
recommendations were
accepted
by
the
Government
by its Resolution
dated 16th September, 1948.
This
difference in
the result 'between
the two scales
not
unnaturally caused
considerable dissatisfaction among
the
employees
concerned,
and
after
unsuccessful
attempts to get redress on the executive side, they
filed through their representative, the respondent, the
present application under article 226 of the Constitution.
In the petition it was alleged that "the State
Government
should
have uniformly
ad\)pted
the
Government of India rates for all its servants and the
discrimination in making the two-fold slab and acceptmg the
Government of India rates for one slab, i.e.,
for
servants
rece1v111g
salary
over Rs. 400,
and not
accepting
them
111
respect of the other slab, i.e., of
servants
drawing below
Rs.
400,
1s
highly discriminatory," that "the State Government servant has a
right to be treated equally with the Central Government
servan'tl
similarly
situated,"
and
that
"every
servant has these fundamental and natural rights and
1954
Tht State of
Madhya Pradesh
v.
G. C. Mandawar.
V enkatarama
Ayyar J.
1954
The State of
Madhya Pradesh
v.
G. C. Mandawar.
V enkatarama
Ayya" J.
602
SUPREME COURT REPORTS
[1955]
. ,;
the petmoner and the members of the Ministerial
Services Associations have a right to demand from the
respondent the Dearness Allowance at the Government
of India rates." The petitioner then prayed :
"That declaring that all ministerial servants are
entitled to the Government of India rates of Dearness
Allowance or in any case adequate Dearness Allowance,
the State Government should be directed by a writ of
mandamus or by any other suitable writ or direction to
cancel the discriminatory
rules of Dearness Allowance
and
adopt
the
Government of
India rates
to all
servants
without
discrimination
or in any
case,
to
provide
with adequate rates
of
Dearness
Allowance
sufficient to provide reasonable subsistence for
them."
The Government contested the petition on the
grounds, firstly,
that the claim for dearness allowance
was not justiciable, and secondly, that the difference
in the scales of dearness allowance adopted by the
Commission and by the Committee did not .violate
article 14. The learned
Judges (Sinha C.J. and Blrntt
).)
hefd that under the rules dearness allowance was
placed on the same footing as pay, and that the claim
relating thereto was therefore justiciable ; and that the
differentiation
made between the employees
of
the
Central Government and of the State Government in
the matter of the grant of dearness allowance rested on
"no intelligible and
reasonable basis," and that the
Resolution dated 16th September, 1948, was therefore
. "
bad. They accordingly issued a direction to the State
Government that they do
reconsider the question
of
dearness allowance payable to the employees concerned. •
_...
It is against this judgment that the present appeal has
been preferred by the
State Government on a certificate granted under article 132(1) of the Constitution.
It is argued on behalf of the appellant firstly that
grant of dearness allowance is a matter ex gratia and
not justiciable, and that neither a writ of mandamus
nor any direction could be issued with reference thereto,
and secondly,
that
the
Resolution dated
16th
September,
1948, is not hit by article 14 of the
Constitution.
In our opinion, both these contentions
are well founded.
-
'r .•
J..
•
J
S.C.R.
SUPREME COURT REPORTS
603
On the first question, Rule 44 of the Fundamental Rules runs as follow : "Subject to any restrictions
which the Secretary of State in Council may by order
impose upon the powers of the Governor-General in
Council or the Governor in Council, as the case may be,
and to the general rule that the amount of a compensatory
allowance sgould
be
so regulated that the
allowance is not on the whole a source of profit to the
recipient, a Local Government may grant such allowance 'to any Government servant under its control and
may make rules prescribing their amounts and the
conditions under which they may be drawn."
Under this provision, it is a matter of discretion
with the local Government whether it will grant
dearness allowance and if so, how much. That being
so, the prayer for mandamus is clearly misconceived,
as that could be granted,only when there is in the
applicant a right to compel the performance of some
duty' cast on the opponent. Rule 44 of the Fundamental Rules confers no
right
on
the
Government
servants to the grant of dearness allowance ; 1t imposes
no duty on the State to grant it.
It merely confers a
power on the State to grant compassionate allowance
at its own discretion, and no mandamus can issue to
compel the exercise of such a power. Nor, indeed,
could any other writ or direction be issued in respect
of it, as there is no right in the applicant which is
capable of being protected or enforced.
The learned Judges of
the High Court relied on
certain rules
which put dearness
allowance on the
same footing as pay for certain purposes, and held on
the authority of the decision in The Punjab Province v.
Pandit Tara Chand( 1 )
that the present claim was justiciable.
But The Punjab Province
v.
Pandit Tara
Chand was an action for recovery of arrear:> of salary,
and it was held that under the law of this country
which differed in this respect from that of England,
arrears of salary were a debt due by the Government,
that they could be attached in execution of a decree
under section 60, Civil Procedure Code, as a debt, and
that on that basis an action to recover the same was
(1) [1947] F.C.R. 89.
20-87-87 S. C . ./ndia/59
195~
Th• State of
Madhya Pradesh
v.
G. c. MandllRltir.
V1nkatarama
·Ayyar J.
1954
The1 Stale oJ
Madl!Ya Pradesh
v.
G.C.Mandawat
V enkatarama
Ayyat J,
604
SUPREME COURT REPORTS
[1955]
maintainable.
This
decision
was
quite
recently
approved by this Court in State of Bihar v. Abdul
Majid('), wherein it was pointed out that salary was
not in the nature of a bounty, and that whatever was
recoverable by a Petition of Rights in ' England .could
be recovered by action in this country. This question
may therefore now be taken to be
settled beyond
controversy. But we are not concerned in the present
proceedings with any debt payable by the Government.
The claim is not to recover arrears of dearness allow-
' ance which had accrued due under the rules in force
relating thereto. The claim now put forward is to
corripel tl1e Government to grant dearness allowance at
a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and
not a matter of right. In England, no petition of right
will lie in respect of such a claim. The position is thus
stated in Halsbury's Laws of England, Volume IX,
page 688, Note(s) :
"It is erroneous to suppose that a petition of
right will lie for matters which are of grace and not of
right. [De Bode (Baron) v. R.( 2 ).)"
That is also the law in this country where an action
is a substitute for a petition of right. In the result,
we must hold that the matters raised in the petition
are not justiciable.
Mr. Nambiar, the learned counsel for the respondent,
did not dispute the correctness of this position. But
he argued that when once the Government passed a
Resolution fixing a scale of allowance under Rule 44,
that would be law as defined in article 13(:~) (a) of the
Constitution, and if that ' law infringed article 14, it
could be declared void. That is a contention which is
clearly open to him, and the question therefore that
falls to be decided is whether the Resolution dated
26th September, 1948, is bad as infringing article 14. ·
Now, the scheme which has been adopted in the
impugned
Resolution
is firstly that dearness allowance
is to be paid to the employees on a scale graded
according to pay, different
rates
being adopted for
. different slabs
and there being a progressive reduction
(1) [1954] S.C.R. 786.
(2) 13 Q. B. 364 Ex. f:h. >t p. 387.
,
-
( . ....
•
A
'-
•
;. .
., .
t
-
S.C.R.
SUPREME COURT REPORTS
605
of the rate from the lowest to the highest category.
No contention is raised that fixing different rates of
dearness allowance for different slabs of pay is obnoxious to article 14. Secondly, within any given slab,
the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher
rate is fixed for residents in the cities of Nagpur and
Jubbulpore,
which again has not been attacked as
discriminatory. These being the features of the scheme,
there can be no room for the contention that it has
made any discrimination.
Mr. Nambiar does not contend that there is anything in the scheme or in the Resolution adopting it,
which brings it within the
prohibition enacted in
article 14. His contention is that the Committee whose
recommendations
were accepted by
the
Government
adopted the rates
suggested in the report of the
Commission as regards Government servants who drew
a monthly salary of over Rs. 400, but when they came
to those employees who drew a monthly salary of
Rs. 400 or less, they discarded the rates fixed by the
Commission, and, instead, adopted different and lower
rates,
and that this
was discrimination hit by article
14. In other words, the impugned Resolution, though
valid in itself as
not infringing article
14, becomes
void under that provision when it is taken in conjunction with the report of the Commission. We do not
find anything in article 14 which supports this somewhat startling contention.
Under the
Constitution,
the , Union and the States are distinct entities, each
having its
own executive and Legislature, with their
powers well-defined. Article 12 defines "the State" as
including the Government and the Legislature of each
of the States. Article 13(2)
enacts that the State shall
not make any laws taking away or abridging the rights
conferred by Part III, and article 14 enacts that,
"The State shall not deny to any person equality
before the law or the equal protection of the laws
within the territory of India."
__
On these provisions, the position is that when a faw
is impugned under article 13, what the Court has to
19~4
The State of
Madhya Pradesh
v •.
G. C. Mantfawat.
Venkata.-oma
Ayyar J·
1954
The Stat1 of
Madhya Pradesh
,,.
G. C. MandawM.
V tnktJtarama
4?.Yar J.
606
SUPREME COURT REPORTS
[1955]
decide is whether that law contravenes any of the
provisions of Part III. If it decides that it does, it has
to declare it void ; if it decides that it does not, it has
to uphold it. The power of the Court to declare a law
void under article 13 has to be exercised with reference
to the specific legislation which is impugned. It is
conceivable that when the same Legislature enacts two
different laws but in substance they form one legislation, it might be open to the Court to disregard
the form and treat them as one law and strike it down,
if in their conjunction they result in dis.crimination.
But such a course is not open where, as here, the two
laws sought to be read in conjunction are by different
Governments and by different Legislatures. Article 14
does not authorise the striking down of a law of one
State on the ground that in contrast with a law of
another State on the same subject its provisions are
discriminatory. Nor does it contemplate a law of the
Centre or of the State dealing with similar subjects
being held to be unconstitutional by a process of
comparative study of the provisions of the two enactments. The sources of authority for the two
statutes
being different, article l4 can
have no application.
The result, therefore, is that the scale of dearness
allowance
recommended by
the
Commission and
sanctioned by the Central
Government can furnish no
ground for holding that the scale of dearness allowance
recommended by the Committee and adopted by the
appellant is repugnant to article 14.
It may no doubt
sound hard that Government servants doing work of
a similar kind and working, it may be, even in the
same place, should receive different allowances ; but
the rights of the parties have to be decided on legal
considerations, and it is
impossible
to hold that the
Resolution in question is bad under article 14.
It was argued on behalf of the appellant that the
assumption underlying the argument of the respondent
with reference to article 14 that the Committee had
adopted the Report of the Commission in part and
rejected it in part was itself without foundation. In
the view we have taken on the applicability of article
14, this question has no practical importance ; but as
...
. ..
-
-
S.C.R.
SUPREME COURT REPORTS
607
all the materials have been placed before us, we may
briefly express our opinion thereon. In paragraph
80
of the Report the Committee observed that while the
Commission based its scale on the cost of living index,
they themselves adopted the current level of prices as
J..
the basis for fixation of dearness allowance. In para-
'
graph 83 they further observed that in fixing the scale
on the basis of the cost of living index the element of
pay had also been taken into account, but that as
they had revised the scale of basic pay, they were not
including it
in fixing the
dearnes~ allowance. In
paragraph 31, they observed that unlike the Commission they were taking into consideration the financial
resources of the State in fixing the scale. Thus, the
.., , Committee approached the problem from a different
angle, and applied different principles in fixing the
scale of dearness
allowance ; and if the two schemes
produced the same results at some stages, that was
due to coincidence and not to adoption of the report
of the Commission by the Committee. Mr. Nambiar
also referred us to two Resolutions of the appellant
dated 4th January,
1951, and 6th October, 1951, adopting the scale fixed by the Commission in respect of
certain other categories. That has no bearing on the
question whether the Committee whose recommendations were approved by the Government had adopted
in part .the Report of the Commission so as to result
in discrimination. The facts
stated above show that
the Committee went into the matter independently,
and viewed the question from a different standpoint ;
,>.
and in formulating the scheme which they did, they
' did not adopt the Report of the Commission, though
they derived considerable assistance from it.
In the result, this appeal must be allowed and the
petition of
the respondent
dismissed ; but in the
circumstances, there will be no order as to costs either
here or in the Court below.
Appeal allowed.
1954
The State ef
Madhya Pradesh
'If·
G. C· Mandawar.
V enkalaram•
Ayyar ].
•