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D.K.KHARE & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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D.K.Khare & Others v. State Of U.P. & Others - WRIT - A No. 24292 of 1995 [2004] RD-AH 1467 (22 November 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.24292 of 1995

D.K. Khare and others Vs. State of U.P. and others

****

Hon'ble V.C. Misra, J.

Heard Sri Ashok Khare, learned counsel for the petitioners and Ms. Suman Sirohi, learned counsel for the respondents.

1. The facts of the case in brief are that all the petitioners are workshop instructors in the institution of Engineering and Technology, Allahabad (hereinafter referred to as the ''Institution').

2. This writ petition has been filed claiming the sanctioned pay scale of Rs. 1640 - 2900 w.e.f. 1.1.1986 along with consequential revision in the pay scale from time to time, in conformity under Article 39 (d) of the Constitution of India, claiming equal pay for equal work and on the basis of parity claimed by the then Engineering Instructor of the Institute, which posts was subsequently re-designated as the Assistant Lecturer (Engineering), since both the posts of workshop instructor and engineering instructor (re-designated as the Assistant Lecturer Engineering) in the institute, carried the same uniform pay scale of Rs.180-380 under the First Pay Commission Revision, and then the same uniform pay scale of Rs.325-575 for both posts was provided under the Second Pay Commission Revision and thereafter thirdly uniform pay scale 550-940 was again made applicable to both the posts under the Third Pay Commission Revision.

3. The case of the petitioners is that they have always been treated at par with the Assistant Lecturer (earlier known as Engineering Instructors) and there is no distinction of work of teaching etc. and everything else remained the same, including the promotional pay scale of Rs.2200-4000 of both the posts.  The Government later on issued an order-dated 31.12.1987 (Annexure-11 to the writ petition) whereby the designation of the Assistant Lecturer (Engineering) was sanctioned to Diploma-Holder Engineering Instructors, working in the pay scale of Rs.550-940.  This Government Order further specified that on account of such change in the designation there would be no change in the pay scale applicable.  Thereafter another Government Order (Annexure-12 to the writ petition) was issued on 2.6.1992 specifying the revision of pay scale in pursuance of recommendation of Pay Equalization Committee (1989). Under this Government Order the pay scale of Rs.1400-2400 was specified as revised pay scale for both the posts of workshop instructors and engineering instructors (Re-designated as the Assistant Lecturer). Another Government Order dated 3.6.1992, (Annexure No.13 to the writ petition) followed for making modification in the Government Order dated 2.6.1992 providing the pay scale of Rs. 1640-2900 to the Engineering Instructors/the Assistant Lecturers (Engineering). By this Government Order a distinction was carved out from the first time by providing the Higher Pay Scale to the Engineering Instructors/the Assistant Lecturers, leaving being the workshop instructors (the petitioners). A decision-dated 21.9.1992 of the Committee was forwarded to the State Government for its consideration in respect with the matter of the workshop instructors/the petitioners, (Annexure-S.R.A.-4 to the supplementary rejoinder affidavit dated 23.3.1999).

4. The petitioners being aggrieved, filed a writ petition no.26878 of 1994 before this court, which was disposed of vide order dated 23.8.1994, directing the State Government to consider and decide the representation of the petitioners in respect of anomalies caused in the pay scale. In pursuance thereto vide impugned Government Order dated 30.3.1995 the pay scale of the workshop instructors (the petitioners) was converted from Rs. 1400-2400 of 1400-2600 and the representation of the petitioners for sanction of pay scale of Rs.1640-2900 at par with the pay scale of engineering instructors/the Assistant Lecturers (Engineering) was rejected.

5. Being aggrieved by the said decision of the Government, the petitioners preferred the present writ petition seeking relief for issuance of a writ of certiorari quashing the provision of the impugned Government Order and letter dated 30.3.1995, to the extent it had granted lower pay scale of Rs. 1400-2600 in respect with the petitioners' pay scale, and seeking parity in the same revised uniform pay scale of Rs. 1640-2900 mentioned in the Government Order dated 3.6.1992 (Annexure No.13 to the writ petition) with their counterpart engineering instructors/ the Assistant Lecturers (Engineering).

6. The respondents have filed a counter affidavit, wherein it has been stated that on the basis of parity of Delhi Administration the pay anomaly committee constituted under the President-ship of Chief Secretary, submitted a report for giving pay scale of Rs.1400-2600 to the workshop instructors (petitioners) and on the basis of the said report the State Government vide its order dated 30.3.1995 approved the said pay scale of the petitioners. After considering the representation of the petitioners, the same had been rejected by the State Government vide order dated 30.3.1995 on the ground that the post and working of the petitioners and Assistant Lecturers are distinguishable on the basis of educational qualifications, which for workshop instructors (petitioners) is 3 years certificate in concerned trade from GSTS or High School with certificate in the concerned trade of ITI/GITI/Polytechnic or diploma in respective branch, whereas the educational qualification for Assistant Lecturer is diploma with 65% marks in respective branch of engineering and one year industrial experience/apprentice-ship. Apart from it, the workshop instructors (petitioners) gives only practical teaching to the students whereas the Assistant Lecturer gives both practical and theory teaching. Thus, there being distinction and there being no equality between workshop instructor and assistant lecturer in respect with working and additional qualifications, there was no justification for giving the same pay scale of Rs.1640-2900 to both.

7. Sri Ashok Khare, learned counsel for the petitioners has submitted that the petitioners were always treated at par at every stage with assistant lecturers (earlier known as engineering instructors). Secondly, there is no distinction in the working conditions, and the work (teaching) etc. and every aspect is the same including the educational qualification and promotional pay scale. Learned counsel for the petitioners has relied upon the following several Judgments:-

Randhir Singh Vs. Union of India and others reported in  (1982) 1 Supreme Court Cases 618. In this case, on the point of ''equal pay for equal work' regarding parity among vehicle drivers in different departments wherein it has been held in para-6 that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different department.

State of Mysore Vs. B. Basavalingappa reported in 1986 (Supp.) Supreme Court Case 661. In this case, on the point of discrimination in pay scale were both certificate holders and diploma holders were entitled to be recruited to the same cadre of instructors with the same pay scale without making any qualification-wise distinction. It has been held therein that certificate holders cannot be given lower pay scale on subsequent pay revision vis-a-vis diploma holders, on the ground that no material was on record on the basis of which it could be contended that there was any substantial difference at that very time between the two qualifications although they were described differently.

State of Bihar and others Vs. Bihar State Workshop Superintendents Federation and others reported in 1993 Supp. (2) Supreme Court Cases 368. In this Case, the question raised was as to whether the workshop Superintendent of Government Polytechnic institute the teaching post and UGC scale of pay could be granted to the incumbents working as such for last several decades at par with those of associate professor. It was held that in view of historical back ground and terms and conditions of the service and pay scales being applicable to the respondents for a considerable long period of time, they were entitled to the revised pay scale allowed to assistant professor (senior scales) with all consequential benefits.

Narendra Kumar and another Vs. Dharam Dutt and another, along with other petitions reported in 1993 Supp. (3) Supreme Court Cases 205. In this case, of Narendra Kumar and another, on the point of ''equal pay for equal work' a claim by employees in different departments of New Delhi Municipal Committee was raised in terms of Shiv Shanker Committee's pay-scales on the basis of R.D. Gupta's case wherein the claims of some of them such as Auto Workshop, Duplicating Machine Operators/Dog Shooters, Junior Technical Assistants (Hindi) or Translators (Hindi), Assistant Store Keepers and Pump Drivers, was allowed and of remaining others such as School Employees, Telephone Operators, was rejected on the ground of similarity and dis-similarity of cadre and category.

State of Haryana and another Vs. Ram Chander and another reported in (1997) (5) Supreme Court Cases 253. In this case, the Apex Court has held for parity in employment of teachers teaching in different educational institutes, where the course contents was the same. It was also held that difference in educational qualifications, where both the sets of employees though being similarly circumscribed, the difference in educational qualifications would have made some vital difference, but for the fact that the State Government had itself effaced this difference thrice while revising the pay scale of its employees on the recommendations of the Pay Revision Committee treating all the teachers at par and offered uniform revised pay scales to all the post-graduate teachers on the ground that ''equal pay for equal work' is a concept which requires for its applicability complete and whole sale identity between a group of employees claiming the identical pay scales and the other group of employees who have already earned such pay scale.

State of West Bengal and others Vs. Harendra Nath Bhowmick and others reported in (2001) 5 Supreme Court Cases- 66. In this case, the Laboratory Assistant re-designated as Laboratory Instructors claimed entitlement to the pay scale which was being given to the Physical Instructors/Demonstrators, since they were discharging teaching functions apart from guiding the students in laboratory work, but they were refused the status of teaching staff for the purposes of pay, allowances etc. though they belonged to the teaching staff.

8. In support of his contentions Sri Khare has also relied upon the following cases:-

- Union of India and others Vs. Debashis Kar and others reported in 1995 Supp. (3) Supreme Court Cases 528,

- Anil Ratan Sarkar and others Vs. State of West Bengal and others reported in (2001) 5 Supreme Court Cases 327, and

9. Ms. Suman Sirohi learned standing counsel has submitted that there was no dispute prior to 3.6.1992. The Workshop Instructors (petitioners) and Assistant Lecturers (Engineering Instructors) were in the same pay scale but thereafter the pay scales of only Assistant Lecturers was increased to Rs.1640-2900 whereas that of the petitioners remained at Rs.1400-2600. Since, the State Government found it justified to classify both these categories being reasonable classification and relied upon the decision in the case of State of West Bengal Vs. Anwar Ali Sarkar and another reported in AIR 1952 Supreme Court page 75, wherein it was held that for reasonable classifications, two conditions must be satisfied. Firstly, it should be based on intelligible differentia, and secondly, this differentia must have some rational relation with the object sought to be achieved for classification, and that under similarly situated controversy in the case of State Bank of India and others Vs. M.R. Ganesh Babu and others reported in 2002 Supreme Court Cases (L&S) 568 (Paras-15,16 & 17), it has been held that the officers placed in two different pay scales and on the basis of the classification were found justified by the Hon'ble Supreme Court.

10. Learned standing counsel has relied upon the decision in the case of U.S. Menon Vs. State of Rajasthan reported in AIR 1968 Supreme Court 81 (para-6), on the aspect of ''equal pay for equal work'. She has further relied upon the decision in the case of Union of India Vs. Tarit Ranjan Das reported in 2004 Supreme Court Cases (L&S) page-160 (paras-9,10 & 11) wherein it has been held that equity is not based on distinction and nature of work alone, there are several other factors like responsibilities, reliabilities, experience, confidentiality and involved functional need and requirements commensurate with the position and hierachy, required qualifications are equally relevant. Once the policy decision had been taken by the government on the basis of report of the expert committee it should not be interfered in the writ petition except on the ground that the classification was unreasonable. In support of its contention, learned standing counsel has relied upon the following cases :-

- Union of India and others Vs. Pradeep Kumar Dey reported in 2001 SCC (L&S) page 56 (paras-8 & 14),

- State of U.P. Vs. J.P. Chaurasia reported in 1989 SCC (L&S) page 71 (para-18),

- S.L. Ahmad Vs. Union of India reported in 1982 SCC (L&S) page 258 (para-10),

- State of Madhya Pradesh and others Vs. Pramod Bhartiya and others reported in 1993 SCC (L&S) page 221 (paras-12 & 13),

- Shyam Babu Verma and others Vs. Union of India and others reported in 1994 SCC (L&S) page 683 (paras-8 & 9),

- Shiba Kumar Vs. Union of India reported in AIR 1998 SCC page 2911 and

- State of West Bengal Vs. Deo Kumar reported in AIR 1995 SC 1889.

11. I have looked into the record of the case and heard the learned counsel for the parties at length, I find that once the petitioners (working as Workshop Instructors) were treated at par throughout with the Engineering Instructors re-designated as Assistant Lecturer (engineering) by the Government, prior to 3.6.1992 in the same pay scale of Rs.1400-2600, applicable to both the posts but have been subsequently discriminated by not paying the revised pay scale, as modified by its order dated 3.6.1992, providing the pay scale of Rs.1640-2900 for Engineering instructors/Assistant Lecturers (engineering) only, though the promotional pay scale of both the posts had been sanctioned at par on the scale of Rs.2200-4000 vide its order dated 7.11.1995. This discrimination has been made without any basis, justification or without being based on any cogent reasons. This discrimination and distinction should not have been made since there did not exist any such effective distinction in the working conditions, work (teaching) etc. between the petitioners-workshop instructors and the engineering instructors re-designated as assistant lecturer, engineering. There being no distinction between both the posts but for the difference in minimum educational qualification required for the purpose of recruitment which for workshop instructors is 3 years certificate in concerned trade from GSTS or High School with certificate in the concerned trade of I.T.I/G.I.T.I/Polytechnic or diploma in respective branch whereas the educational qualifications for Assistant Lecturer is diploma in the respective branch with a cut-off 65% marks and one year industrial experience/apprentice-ship. This eligibility criteria had not been considered to be of any distinction by the State Government, as being one of the different source for recruitment and both these sets of employees being similarly circumscribed such a very minor difference, the same would not be treated as of vital difference due to the fact that the respondents themselves thought it fit and proper to ignore the said difference in the educational qualifications/eligibility by offering a uniform pay scale on both the posts treating them at par, by promulgating the revised pay scales in the light of the recommendations of the first, second and third Pay Commission Reports.

12. I do not find any justification for not providing the same pay scale of Rs.1640-2900 provided to the Engineering Instructors/Assistant Lecturers (Engineering) and also to the petitioners as per the Government Order dated 3.6.1992 though subsequently vide Government Order dated 7.11.1995, the petitioners and assistant lecturers both were provided the same promotional pay scale of Rs.2200-4000 and were being treated at par. In my view, the action of the Government in not treating the petitioners at par subsequently with Engineering Instructors/Assistant Lecturers (Engineering) without any cogent reasons is arbitrary and thereby prima facie violative of Article 14 of the Constitution of India.

13. In the result, the provisions of Government Order and letter dated 30.3.1995 annexed to the writ petition to the extent it relates to granting a lower pay scale of Rs.1400-2600 are hereby quashed. The respondent no.1 is also directed to grant all the petitioners' parity in the same revised pay scale of Rs.1640-2900 as per the Government Order dated 3.6.1992 with all consequential benefits and make good the petitioners, the arrears of pay in the revised pay scale with increments as may be available to them in accordance with law to be worked out accordingly with effect from 3.6.1992 and their present pay be also re-revised accordingly. The aforesaid exercise shall be carried out by the respondents, preferably within a period of 3 months from the date of receipt of a copy of this order, by the respondents.

The writ petition is allowed. No order as to costs.

November 22, 2004

Hasnain


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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