State of
M.P.& Ors. Vs. Ramesh Chandra Bajpai [2009] INSC 1304 (28 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of S.L.P.(C) No. 25682 of 2008) State of Madhya Pradesh &
others ... Appellants Versus Ramesh Chandra Bajpai ... Respondents
S.B.
SINHA, J.
1.
The State of Madhya Pradesh is before us aggrieved by and
dissatisfied with the judgment and order dated 4.1.2008 passed by a Division
Bench of the High Court of Madhya Pradesh, Indore Bench at Indore in Writ
Appeal No.201 of 2006 whereby and whereunder the appeal preferred by the
appellant herein from a judgment and order dated 3.11.2004 passed by a learned
Single Judge of the said High Court in Writ Petition No.4005/2003, was
dismissed.
2.
The core question which arises for consideration before us is as
to whether the respondent herein who is working as Physical Training 2
Instructor in Government Ayurvedic College is entitled to claim parity of pay
with the teachers who have been granted UGC scale of pay.
3.
The respondent was appointed as Physical Training Instructor in
Government Ayurvedic College, Ujjain by an offer of appointment dated
18.1.1973. He filed O.A. No. 907 of 1998 before the Madhya Pradesh Administrative
Tribunal, Indore Bench (for short, "the Tribunal") with the prayer
that the non-applicants in the O.A. (the petitioners herein) be directed to
treat him as teacher and fix his pay in the pay scale prescribed for that post
along with the benefit of senior scale and also give him the UGC pay scale
(Rs.3,700-5,700) w.e.f.1.1.1986.
In the
counter affidavit filed on behalf of the non-applicants, it was pleaded that
UGC scales have not been made applicable so far as the staff of Ayurvedic
Colleges are concerned and that there was no sanctioned post of Sports Officer
in the college for which the pay scale of Rs.3,700-5,700 was recommended and in
that view of the matter the applicant could not have been treated at par with
the teachers who are employed in the School Education Department.
4.
The Tribunal dismissed the application of the respondent observing
that the applicant having not been holding the post of Sports Officer and
having not been working in the Government College administered by the 3
Department of Higher Education, he was not entitled to any relief. The Tribunal
also held that Physical Training Instructors cannot be treated at par with the
teachers because the Government has not issued any order equating the said two
posts.
Soon
thereafter, the respondent filed an application (M.A. No.277/1998) for review
of the order dated 16.9.1998 vide which the Tribunal has dismissed the O.A.
5.
During the pendency of that application, the Tribunal was
abolished and all the pending matters were transferred to the High Court. The
respondent's case was then registered as Writ Petition No.4005/2003.
6.
A learned single judge of the High Court allowed the writ petition
relying upon the judgment of this Court in P.S. Ramamohana Rao v. A.P. Agricultural
University and another [1997 (8) SCC 350] and the order passed in Writ Petition
No. 5438 of 2000 directing that the pay of the writ petitioner be fixed in the
scale prescribed for the post of teacher.
The
Division Bench dismissed the writ appeal preferred by the petitioners primarily
on the ground that a large number of Physical Training Instructors have already
been granted U.G.C. scale and an order declining 4 relief to the respondent
would result in discrimination. The Division Bench also referred to the judgment
in P.S. Ramamohana Rao (supra) and held that the respondent cannot be deprived
of the benefit of pay scale which has already been extended to other similarly
situated Physical Training Instructors employed in the Ayurvedic Colleges.
7.
Learned counsel for the appellants referred to the provisions
contained in the Madhya Pradesh (Indian Systems of Medicine and Homeopathy)
Class III Ministerial Services Recruitment Rules, 1987 (hereinafter referred to
as "the 1987 Rules") and the Madhya Pradesh Educational Service
(Collegiate Branch) Recruitment Rules, 1990 (hereinafter referred to as
"the 1990 Rules") to contend that recruitment to the posts of
Physical Training Instructors and Sports Officers are regulated by different
sets of rules. It was argued that holders of the two posts cannot be treated at
par for the purpose of fixation of pay in the UGC scale. The learned counsel
submitted that the High Court committed serious error by relying upon the ratio
of the judgment in P.S. Ramamohana Rao (supra) for the purpose of granting
relief to the respondent because the only question considered therein was
whether having regard to the nature of duties performed by the appellant
therein, a person holding the post of Physical Director in Andhra Pradesh
Agricultural University was entitled to be treated as teacher within the
meaning of Section 2(n) of the A.P. Agricultural University Act, 1963 (for
short `the 5 1963 Act') and was, thus, entitled to continue in service till the
age of 60 years. Learned counsel stated that benefit of the UGC scales of pay
have not been extended to the employees of Ayurvedic Colleges including the
members of teaching staff and those governed by the 1987 Rules. On the issue of
grant of UGC scale of pay to other Physical Training Instructors, learned
counsel invited our attention to para 3(iii) of the rejoinder affidavit, which
reads as under:- "In reply it is submitted that it is correct that on the
basis of the orders passed by the High Court some of the Physical Training
Instructors have been given UGC pay scales but this has been done in compliance
of the orders passed by the High Court and the same could not be challenged on
the ground that the appeal had become time barred and orders could not be
challenged because of the advise received at the relevant time. Subsequently,
it has been found that erroneously Physical Training Instructors of
Engineering, Medical and Ayurvedic Colleges have been given UGC Pay Scales even
though the Administrators, Lecturers, Professors and Principal of Engineering,
Medical and Ayurvedic Colleges are not getting the UGC pay scales."
8.
Learned counsel for the respondent argued that after having
accepted and implemented the orders passed by the Tribunal and the High Court
in the cases of other Physical Training Instructors for grant of UGC scale of
pay, it is not open to the appellants to discriminate the respondent by relying
upon the provisions of the 1987 Rules. He invited the court's attention to an 6
order dated 24.5.2004 to show that the Physical Training Instructors appointed
in Medical Colleges of the State have been granted the benefit of UGC scale of
pay and submitted that the High Court did not commit any error by directing the
petitioners to fix the respondent's pay in the UGC scale. Learned counsel pointed
out that as late as on 24.4.2004, the State Government has extended the benefit
of UGC scale of pay to Physical Training Instructors of other colleges and
submitted that there is no rationality or reason for denying the same benefit
to the respondent.
9.
It is not in dispute that Ayurvedic Colleges situated in the State
of Madhya Pradesh are under the control of the Department of Medical Education.
It is also not in dispute that at present recruitment to the post of Physical
Training Instructor is regulated by the 1987 Rules. In terms of rules 5, 6 and
8 read with the relevant entries of Schedules I, II and III of the 1987 Rules,
the post of Physical Training Instructor is categorized as Class III
Non-Ministerial under the heading `Establishment of Divisional Organization'
and the same is required to be filled 100 per cent by direct recruitment from
amongst the persons possessing the requisite educational qualification of
Diploma in Physical Training.
The post
of Sports Officer finds mention in the four Schedules appended to the 1990
Rules. By virtue of Rule 8 read with the relevant 7 entries of Schedules II and
III of the 1990 Rules, the post of Sports Officer is required to be filled as
under:
90% by
direct recruitment; and 10% by promotion from amongst the Assistant Sports
Officers.
10.
The educational qualification prescribed for direct recruitment to
the post of Sports Officer is a Post Graduate Degree in physical education with
at least 55% marks and at the degree level of physical education, the
percentage of total marks obtained should not be less than 50.
11.
A comparison of the provisions of the 1987 Rules and 1990 Rules
clearly establish that they not only deal with different classes of employees
but the educational qualifications and scales of pay prescribed for the posts
enumerated in Schedules of two sets of Rules are entirely different. While the
1987 Rules regulate recruitment to Class III Ministerial and Non- Ministerial
posts in various colleges imparting education in Indian System of Medicine
including Ayurveda, the 1990 rules regulate recruitment to different posts in
the Educational Service (Collegiate Branch) including that of Sports Officer.
12.
The post of `teacher' does not find place either in the 1987 Rules
or in the 1990 Rules. We have made a mention of this fact only because the
respondent has claimed parity in the matter of pay scale with teachers.
13.
In paragraph 6 of the impugned order, the Division Bench of the
High Court observed that the rules governing and regulating the service of
respondent make a distinction between Physical Training Instructor and teacher
in the matter of status and pay scale, but proceeded to sustain the direction
given by the learned single judge mainly on the premise that the orders passed
in the cases of other Physical Training Instructors have not been assailed.
The
Division Bench also relied upon the ratio of judgment of this Court in
Ramamohana Rao (supra) case and observed that the nature and duties of the
Physical Training Instructors are at par with those of teachers.
14.
In our view, the approach adopted by the learned Single Judge and
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 9 designation or
nature or quantum of work is not determinative of equality 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 equality clause can be invoked in the matter of pay
scales only when there is wholesale identity between the holders of two posts.
15.
In Government of West Bengal vs. Tarun Kumar Roy [2004 (1) SCC 347],
a three-Judge Bench of this Court held as under:
"14.
Article 14 read with Article 39(d) of the Constitution of India envisages the
doctrine of equal pay for equal work. The said doctrine, however, does not
contemplate that only because the nature of the work is same, irrespective of
an educational qualification or irrespective of their source of recruitment or
other relevant considerations the said doctrine would be automatically applied.
The holders of a higher educational qualification can be treated as a separate
class. Such classification, it is trite, is reasonable. Employees performing
the similar job but having different educational qualification can, thus, be
treated differently."
16.
The Court further opined that in a case where the employees do not
hold essential educational qualifications, they cannot claim parity in the
scale of pay on the ground of equality stating:
"30.
The respondents are merely graduates in Science. They do not have the requisite
technical 10 qualification. Only because they are graduates, they cannot, in
our opinion, claim equality with the holders of diploma in Engineering. If any
relief is granted by this court to the respondents on the aforementioned,
ground, the same will be in contravention of the statutory rules. It is trite
that this court even in exercise of its jurisdiction under Article 142 of the
Constitution of India would not ordinarily grant such a relief which would be
in violation of a statutory provision."
17.
It is also well settled that Article 14 of the Constitution
carries with it a positive concept of equality. That Article cannot be invoked
for perpetuating illegality. To put it differently, an illegal or wrong order
passed in one case cannot be made the basis for compelling a public authority to
pass similar order in other cases. Even if the State implements an erroneous
order passed by the court, it cannot be precluded from challenging similar
order passed in another case, simply because appeal was not preferred in the
earlier case. In Government of West Bengal (supra), the Court upon noticing a
large number of decisions, observed:- "25. In a case of this nature, the
courts are required to determine the issue having regard to larger public
interest. It is one thing to say that in a given case the High Court or this
Court may not exercise an equitable jurisdiction under Article 226 or Article
136 of the Constitution of India, but it is another thing to say that the
courts shall grant a relief to a party only on the ground that a contention
which is otherwise valid would not be raised on the ground that the same was
not done in earlier proceedings.
11 xxx
xxx xxx
28. In
the aforementioned situation, the Division Bench of the Calcutta High Court
manifestly erred in refusing to consider the contentions of the appellants on
their own merit, particularly, when the question as regards difference in the
grant of scale of pay on the ground of different educational qualification
stands concluded by a judgment of this Court in Debdas Kumar. If the judgment of
Debdas Kumar is to be followed a finding of fact was required to be arrived at
that they are similarly situated to the case of Debdas Kumar which in turn
would mean that they are also holders of diploma in Engineering. They
admittedly being not, the contention of the appellants could not be rejected.
Non-filing
of an appeal, in any event, would not be a ground for refusing to consider a
matter on its own merits (See State of Maharashtra v. Digambar)."
18.
In State of Jharkhand and others v. Manshu Kumbhkar [2007 (8) SCC
249], this Court held:- "11. Reliance by the High Court on the order
passed in Sanjay Kumar case was thoroughly misconceived. It is to be noted that
LPA was dismissed on the ground of delay. Even otherwise, merely because
mistake had been committed in one case, there is no rational for perpetuating
that mistake, even when the same is legally impermissible."
19.
In Vice-Chancellor, M.D. University, Rohtak v. Jahan Singh [2007
(5) SCC 77], this Court observed:- 12 "Even assuming the respondent and
the said Shri Taneja were similarly situated, we may observe that Article 14 of
the Constitution of India carried with it a positive concept. Article 14 of the
Constitution cannot be invoked, for perpetuating illegality." (See Kuldeep
Singh v. Govt. of NCT of Delhi [2006 (5) SCC 702]."
[See also
Bihar Public Service Commission and others v. Kamini and others [2007 (8) SCC
519].
20.
In view of the aforementioned pronouncements, it must be held that
the respondent cannot derive any benefit from the fact that in compliance of
the orders passed by the Tribunal and High Court, the State Government extended
the benefit of UGC scale of pay to some of the Physical Training Instructors of
Ayurvedic and other colleges. We may assume that what the learned counsel has
stated with reference to order dated 24.4.2009 is correct, but as noticed
hereinabove the illegality cannot be allowed to be perpetrated by invoking the
doctrine of equal pay for equal work.
21.
We may now notice the ratio of the decision in P.S. Ramamohana Rao
(supra). In that case, this Court was called upon to decide whether Physical
Training Instructor in Andhra Pradesh Agricultural University was a teacher
within the meaning of Section 2 (n) and was entitled to continue in service up
to the age of 60 years. The appellant in that case was employed as a 13
Physical Director in Bapatla Agricultural College, which was later on
transferred to Andhra Pradesh Agricultural University. The University sought to
retire the appellant on completion of 58 years. The writ petition filed by him
questioning the decision of the University was dismissed by the Division Bench
of the High Court on the premise that Physical Director does not fall within
the ambit of definition of `teacher'. This Court referred to the relevant
provisions of the Act and regulations framed thereunder including Section 2(n),
which reads as under:- "2(n) `teacher' includes a professor, reader,
lecturer or other person appointed or recognized by the University for the
purpose of imparting instruction or conducting and guiding research or
extension programmes, and any person declared by the statutes to be a
teacher;"
The Court
then noted that duties of the Physical Director in the University were, (a) to
arrange games and sports daily in the evening for the students;
(b) to
look after the procurement of sports materials and maintenance of the sports
ground; (c) to arrange inter-class and inter-collegiate tournaments; (d) to
accompany the student teams for the inter-university tournaments and (e) to
guide the students about the rules of the various games and sports and held:-
"9. From the aforesaid affidavit, it is clear that a Physical Director has
multifarious duties. He not only arranges games and sports for the students
every evening and looks after the procurement of 14 sports material and the
maintenance of the grounds but also arranges inter-class and inter-college
tournaments and accompanies the students' team when they go for the
inter-university tournaments.
For that
purpose it is one of his important duties to guide them about the rules of the
various games and sports. It is well known that different games and sports have
different rules and practices and unless the students are guided about the said
rules and practices they will not be able to play the games and participate in
the sports in a proper manner. Further, in our view, it is inherent in the
duties of Physical Director that he imparts to the students various skills and
techniques of these games and sports. There are a large number of indoor and
outdoor games in which the students have to be trained. Therefore, he has to
teach them several skills and techniques of these games apart from the rules
applicable to these games.
10.
Having regard to the abovesaid material before us, we are clearly of the view
that the appellant comes within the definition of a teacher in sub-clause (n)
of Section 2 of the Act."
22.
We may observe that definition of `teacher' contained in Section
2(n) of the Andhra Act was an expansive one to include those persons who were
not only been imparting instructions but also were conducting and carrying on
research for extension programmes. It also included those who had been declared
to be a teacher within the purview of the definition thereof in terms of any
Statutes framed by such State.
23.
In our view, the aforementioned decision has been misapplied and
misconstrued by the High court.
15 It is
now well settled principles of law that a decision is an authority for what it
decides and not what can logically be deduced therefrom. In Ramamohana Rao
(supra), this Court, having regard to the nature of duties and functions of
Physical Director, held that that post comes within the definition of teacher
as contained in Section 2(n). The proposition laid down in that case should not
have been automatically extended to other case like the present one, where
employees are governed by different sets of rules.
24.
For the aforementioned reasons, the appeal is allowed and the
impugned judgment is set aside. No costs.
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