WPPIL/49/2011 19/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No.

49 of 2011 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ?` 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHREE YOGKSHEM FOUNDATION FOR HUMAN DIGNITY Versus STATE OF GUJARAT & OTHERS ========================================================= Appearance : MR YATIN OZA, SR. ADVOCATE WITH MR DJ BHATT for PETITIONER MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS. SANGEETA VISHEN, ASST. GOVERNMENT PLEADER for RESPONDENT : 1 - 4. MR ANSHIN DESAI for RESPONDENT : 5, ========================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :20/01/2012 CAV JUDGMENT (Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)

1. By this Public Interest Litigation, the writ-petitioner has prayed for issue of appropriate writ, order and direction and thereby to quash and set aside the fixed-pay-condition imposed in the policy framed by the Finance Department by Resolutions KhRCh/2002/57/Z.1 dated February 16, 2006 and April 29, 2010 and to direct the respondent to pay minimum of the pay-scale available in the cadre of the employees who are appointed on regular permanent posts with deemed date effect in the interest of justice; or in the alternative, to direct the respondent to pay minimum wage to the fixed pay employees with corresponding effect of 6th Pay Commission with deemed date effect, i.e. January, 2006 with interest at 12%, in the interest of justice. The writ-petitioner has also prayed for quashing and setting aside the decision taken by the State Government dated February 24, 2011 and to direct the State Government to pay minimum wage to the fixed pay employees with corresponding effect of 6th Pay Commission with deemed date effect, in the interest of justice. 2. The case made out by the writ-petitioner may be summed up thus:

2.1 The Finance Department of the State Government has framed fixed-pay policy by Resolutions no. KhRCh/2002/57/Z.1 dated February 16, 2006 and April 29, 2010 and made recruitment on various permanent posts by giving advertisement and after following complete selection procedure. 2.2 The writ-petitioner, in the past, filed Special Civil Application No. 11810 of 2008 before this Court, wherein this Court directed the State Government to decide the representation made by the writ-petitioner. 2.3 In spite of the directions given by this Court, the State Government not having taken any decision, a reminder was sent to the respondent and as a last resort, when the representation was not decided, the writ-petitioner filed Special Civil Application No. 2492 of 2009 which was ultimately decided on August 26, 2010. By the said order, the Court,inter alia, passed the following directions: 5. From the aforesaid, it will be evident that the State Government is not guided by the Minimum Wages Act, and fixed the wages on the basis of recommendations of the Revision Committees, and taking into consideration the minimum pay which is received by regular employee, they have revised the fixed wages which is much more than the minimum pay fixed for the regular scale of pay. However, we find that pay has been revised by the Revision Committee on the basis of recommendations of 5th Pay Commission. Now, recommendations of 6th Pay Commission have been implemented with effect from January 2006, therefore, it is desirable for the State Government to determine the fixed wages of Class IV and Class III employees, taking into consideration the minimum wages fixed in pursuance of the recommendations of the 6th Pay Commission corresponding to Class IV and Class III regular employees. The Government will also consider to do away with the contractual appointments by making the posts regular, if a fix pay post is continued for more than three years. Such decision should be taken within three months and be communicated to all the establishments with a copy to the Registrar General, High Court of Gujarat. The writ petition and the Civil Application both stand disposed of with the aforesaid observations and directions. No costs. 3. The State Government set up a Cabinet Sub-Committee to take up appropriate decision and the Cabinet SubCommittee submitted its report to the government and on consideration of the relevant papers, the government came to the conclusion that there was no need to make any change in the existing policy framed by the Finance Department vide Resolutions no. KhRCh/2002/57/Z.1 dated February 16, 2006 and April 29, 2010. 4. Being dissatisfied, the present writ-application has been filed. 5. According to the writ-petitioner, the appointments under the fixed-pay-scheme being made on permanent vacant sanctioned posts and the recruitment being made by the selection board, which was duly authorized to make the selection, and the criteria of selection i.e. educational qualifications, age, physical fitness etc. being the same which are followed in regular recruitment and the above process being adopted for recruitment on permanent posts, the policy taken by the State Government for appointment on fixed-pay was unconstitutional, arbitrary, mala fide and violative of Articles 14 and 16 of the Constitution. According to the writ-petitioner, the employment under the fixedpay-basis on permanent sanctioned posts after following due selection procedure was vocative of Article 23 of the Constitution of India. The writ-petitioner further contended that the Bonded Labour System [Abolition] Act, 1976 having prohibited bonded-labour-system and in cases where the private employers are found to be exploiting and engaging the bonded laboures, the said Act casts a duty upon the State to find out the bonded-laborers, which is unlawful, arbitrary, mala fide and violative of Articles 13, 14, 16 and 23 of the Constitution of India; but the State as an employer is acting contrary to the said principles. The writ-petitioner further contends that the duty which the fixed-pay-employees are discharging is the same which is discharged by the regular-pay-employees and not only that, but the working hours, the nature of work, responsibility and accountability are the same except the scale of pay and that is nothing but discrimination without legal nexus and hence, the same is violative of Articles 14 and 16 of the Constitution of India. 6. The aforesaid contention of the writ-petitioner is opposed by the State Government and according to the State Government, the present writ-application is not maintainable, as according to it a Public Interest Litigation in service matters cannot be entertained. On merit also, the respondents have opposed the prayer of the writ-petitioner and their contention may be summed up thus: 6.1 Total number of persons recruited under the various schemes on fixed-pay comes to the tune of 93369 as on the date of the said affidavit, which has increased to the tune of 143369. In such circumstances, if all the said employees are directed to be given the grade-pay in addition to the minimum pay-scale, there would be additional burden of Rs. 462 Crore per annum.

6.2 In furtherance of the aforesaid scheme of fixed-pay, the State Government has amended the Gujarat Civil Services Classification and Recruitment [General] Rules, 1967 [hereafter to be referred to as the Rules ] framed under Article 309 of the Constitution so as to make the aforesaid scheme statutory by providing, inter alia,that the candidates selected by direct selection or as a result of a competitive examination, shall be appointed on contractual basis and at the end of the contractual period, they should be appointed in accordance with sub-rule [1] of the Rules in the pay-scales prescribed for the concerned post. Thus, there is no irregularity in the aforesaid decision taken by the State Government and the aforesaid principle finds support from the following decisions of the Supreme Court: [a] State of Haryana & Others v.Charanjit Singh and others etc. etc., reported in [2006] 9 SCC 321 [relevant paras 15 and 19] [b] Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in [2007] 1 SCC 408 [relevant paras 38 to 53] [c] S.C. Chandra & Others. v State of Jharkhand & Others, reported in [2007] 8 SCC 279 [relevant paras 24 to 30] [d] Jaghnath v. Union of India and another reported in AIR 1992 SC 126. (e) Joshi Tushar Tansukhbhai and others vs. State of Gujarat reported in 2004(2) GLR 1188. 7. Therefore, the questions that fall for our determination in this writ application are: [a] Whether the present Public Interest Litigation should be dismissed by branding the same as one relating to service matter as contended by the respondent and; [b] Whether the principle adopted by the State Government in employing the employees on fixed-pay in the facts of the present case is violative of the provisions of the Constitution of India as indicated above. 8. As regards the first question, it is now a settled law that the Tribunal constituted under the Administrative Tribunal Act should not entertain a Public Interest Litigation except those in the nature of Quo Warranto (Dr. Duryodhan Sahu and others v. Jitendra Kumar Mishra and others reported in AIR 1999 SC 114) and the same principle has been made applicable to a Public Interest Litigation filed in High Court by the Supreme Court in the case of Hari Bansh Lal v. Sahodar Prasad Mahto and Ors reported in AIR 2010 SC 3515. 9. Therefore, the question before us is whether the present Public Interest Litigation can be said to be one relating to service matters. 10. In our opinion, the present writ-application cannot be said to be one relating service matter because in this application the writ-petitioner has alleged violation of the provisions contained in Articles 14 and 16 of the Constitution of India in general against the State Government in fixing the scales of pay of the employees in general in comparison to the employees holding the selfsame post. It is not a case at the instance of an individual employee against the employer alleging illegality in the matter of his promotion, reduction of pay, disciplinary measures, or other grievances in course of his service but one where a public spirited organization is attacking the policy of the State Government in engaging citizen into public service in violation of the provisions of Articles 14 and 16 of the Constitution alleging exploitation on the part of the State Government. In such circumstances, the principles laid down in the case of Dr. Duryodhan Sahu and others (supra) cannot have any application. In the said case, the question whether the Tribunal constituted under the Administrative Tribunals Act are vested with power to entertain Public Interest Litigation. The reason assigned in the case of Dr. Duryodhan Sahu and others (supra) in depriving the Tribunals from entertaining Public Interest Litigation is quoted below: The constitution of Administrative Tribunals was necessitated because of large pendency of cases relating to service matters in various Courts in the country. It was expected that the setting up of Administrative Tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the Courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances. The basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of 'service matters' found in Section 3 (q) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word 'his' cannot be ignored. Section 3 (b) defines the word 'application' as an application made under Section 19. The latter Section refers to 'person aggrieved'. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word 'order' has been defined in the explanation to sub-sec. (1) of Section 19 so that all matters

referred to in Section 3 (q) as service matters could be brought before the Tribunal. If in that context, Sections 14 and 15 are read, there is no doubt that a total stranger to the concerned service cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal the very object of speedy disposal of service matters would get defeated. (Emphasis supplied). 11. In the subsequent case of Hari Bansh Lal v. Sahodar Prasad Mahto and Ors reported in AIR 2010 SC 3515, a twojudge-bench of the Supreme Court by relying upon the said decision made the following observations: Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (AIR 1999 SC 114 : 1998 AIR SCW 3467) this Court held that in service matters PILs should not be entertained, the inflow of so-called PILsinvolving service matters continues unabated in the courts andstrangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. 12. It appears that the Supreme Court in the above case of Hari Bansh Lal (supra), did not take into consideration the earlier decisions of the Supreme Court in the cases of People s Union for Democratic Rights and others vs. Union of India and others reported in (1982) 3 SCC 235 and the five-judge-bench decision in the case of D. S. Nakara and others vs. Union of India reported in AIR 1983 SC 130, where Public Interest Litigation in service matters have been entertained. 13. The following observations in the case of D. S. Nakara (supra) are relevant and are quoted below: Locus standi of third petitioner was questioned. Petitioner No. 3 is a Society registered under the Societies Registration Act of 1860. It is a non-political non-profit and voluntary organisation. Its members consist of public spirited citizens who have take up the cause of ventilating legitimate public problems. This Society received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial process, costly and protected, and, therefor, approached petitioner No. 3 which espoused their cause. Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S. P. Gupta v. Union of India, 1981 (Supp) SCC 87 : (AIR 1982 SC 149 at p. 194), rules that any member of the public having sufficient interest can maintain an action for such judicial redress for public injury arising from a breach of public duty or from violation some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. Third petitioner seeks to enforce rights that may beavailable to a large number of old infirm retirees. Therefore, itslocus standi is unquestionable. But it is a point of academic importance because locus standi of petitioners Nos. 1 and 2 was never questioned. 14. We are thus unable to hold that a Public Interest Litigation in service matter is not entertainable even by a High Court. The view taken in the case of Hari Bansh Lal (supra) that Public Interest Litigation involving service matters is not maintainable in High Courts except in the case of issue of Quo Warranto is not a valid precedent being contrary to the above view of the five-judge-bench. 15. Thus, we find no substance in the first contention that this Public Interest Litigation is not maintainable as it relates to service matters. 16. On the second question formulated above, we find that the law relating to equal pay for equal work is now well settled by the Supreme Court. In the case of State of Punjab vs Surjit Singh reported in AIR 2009 SCW 6759, the Supreme Court laid down the following proposition of 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 the 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 crafts man 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 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 make 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 regard. 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. (Emphasis supplied by us). 17. In a subsequent case of U. P. Land Development Corporation and Anr. v. Mohd. Khursheed Anwar and Anr. Reported in AIR 2010 SC 2287, the Supreme Court in dealing with a case where the writ-petitioners were appointed on contractual basis in spite of having same qualification with the persons holding regular post which were lying vacant observed as follows:

But, at the same time, we are convinced that the appellants were not justified in continuing the respondents on a consolidated salary of Rs.2000/- per month despite the fact that at the time of their selection, two sanctioned posts of Assistant Engineer and one post of Junior Engineer were lying vacant and proposal for appointing the respondents without any nomenclature was made with the sole object of taking work of the particular post from them without paying salary in the regular pay-scale of any post. To say the least, the decision of the Corporation to effect economy by depriving the respondents' even minimum of the pay-scale was totally arbitrary and unjustified. The very fact that the respondents were engaged on a consolidated salary of Rs.2,000/per month and the prescribed pay-scale of the post of Assistant Engineer in other branches was Rs.2200-4000/- and that of the Junior Engineer was Rs.1,600 - 2,660/- gives a clear indication that they were engaged to do the work of Assistant Engineer. The appellants had neither pleaded before the High Court nor it has been shown to this Court that the respondents were not qualified for the post of Assistant Engineer. It is also not the case of the appellants that the respondents suffered from any other disability which could impede their appointment on the post of Assistant Engineer. In the written statement filed before the High Court, the appellants did make a statement that the respondents were not discharging the duties of Assistant Engineer but no material was produced either before the High Court or before this Court to show any difference in the nature of duties being performed by the respondents and those which were required to be performed by an Assistant Engineer. It is, therefore, reasonable to take the view that the respondents had been arbitrarily deprived of their legitimate right to get minimum of the pay-scale prescribed for the post of Assistant Engineer. (Emphasis supplied by us). 18. Bearing in mind the aforesaid principles, we are of the firm view that in this case, the defence of the State Government of additional financial burden is not tenable in the eye of law. If the State Government thinks that it is financially weak, it is entitled to reduce the scale of pay of all the employees having regard to its financial capability. Similarly, experience is one of the factors for assessing the salary payable to its employee and for that reason, the scale of pay is evolved providing increase in scale as the experience of an employee grows. But as pointed out by the Supreme Court in the case of U. P. Land Development Corporation and Anr. v. Mohd. Khursheed Anwar and Anr (supra), the newly appointed employees must be given the lowest approved scale payable to the employee doing similar type of job when their qualification and mode of selection are the same and the State Government has also decided to select them being fully satisfied with their merit in the process of selection. Once the State Government having regard to its financial capability introduced the scale of pay recommended by the pay commission, and the newly appointed employees having been found to be suitable for doing the job for which they are selected on merit, for the lack of experience the Government can for a reasonable period keep them at a fixed scale of pay but the total

remuneration payable to such newly appointed employee doing job in a given post should not be less than the amount fixed by the pay commission and approved by the State Government in lowest grade of such scale of pay. In other words, the newly appointed employee before getting the benefit of the first increment in the scale should get the total amount payable to an employee in the lowest grade of scale for that post. 19. At the same time, the period, the newly employed employees would remain in the lowest grade of scale before completion of the period of probation, should be treated to be part of their service-period for all future service benefit including the retiral ones once they are found to be suitable on completion of probation-period. In other words, the period of probation should be also the part of service on successful completion of probation. 20. We, now propose to deal with the decisions cited by the learned Advocate General. 21. In the case of State of Haryana and others v. Charanjit Singh[supra], the respondents were daily wagers who were appointed as ledger clerks, ledger keepers, pump operators, mali-cum-chokidar, fitters, petrol men, surveyors etc. All of them claimed minimum wages payable under the pay scale of regular Class IV employees from the date of their appointments. The question whether or not those persons were entitled to the minimum of the payscale of a regular Class IV employees was referred to a Full Bench for consideration and the said Full Bench of the High Court gave its decision. Following the said Full Bench decision, all those writ-applications were disposed of by a short order and in all those cases, the respondents were held to be entitled to get the minimum wages in the scale payable to a regular Class IV employee from the date of filing of their respective petitions. 22. While those appeals were pending before the Supreme Court, all the respondents had been regularized. From the date of their regularization, they were paid remuneration according to the pay scale as payable to a regular Class IV employee. Therefore, the only question before the Supreme Court in that case was whether the direction of the High Court to pay minimum wages in the scale payable to a Class IV employee from the date of their filing respective petitions was required to be interfered with. In that context, the Supreme Court, in paragraph-19 of the judgment made the following observations which have been relied upon by the respondent before us: 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 and 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 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 regard. 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.

23. In the case before us, at the very outset, we have followed the selfsame principle by relying upon the latest decision of the Supreme Court in the case of State of Punjab v. Surjit Singh [supra], where the Supreme Court has also followed the selfsame principle. Even applying the aforesaid principle to the facts of the present case, we have already found that it is a fit case where there being no difference of qualification between the employees of the two categories except that the employees on fixed-pay-basis have no experience, they should be placed at the lowest stage of the scale available to the other group of the employees enjoying the scale of pay. 24. In the case of Indian Drugs & Pharmaceuticals Ltd.[supra], the Supreme Court was considering an appeal preferred against an order passed by the Uttaranchal High Court in a writ-application by which the High Court modified the Award of the Labour Court, U.P. Dehradun, to the extent that the workmen, in whose favour the Award had been made, should be allowed to be continued in the service of the appellant employer till their superannuation, and if their services were not required, they should not be terminated except in accordance with industrial law. The High Court further directed that the workmen in question should be paid wages like the regular employees performing the work and duties in the appellant Company. In the above context, the Supreme Court set aside not only the judgment of the High Court, but also of the Labour Court by holding that if the Court or Tribunal directs that a daily rated or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, reported in [2006] 4 SCC 1. 25. We fail to appreciate how the said decision can be of any help to a case where the State, after adopting regular process of selection has found the employees to be competent on merit and they have been given appointment for regular vacancy only with the additional condition that before being found to be suitable on completion the fixed period, they should be employed in the fixed scale. In our opinion, the principle laid down in the case of Indian Drugs & Pharmaceuticals Ltd., where ad hoc employees were directed to be regularized in violation of the principle laid down by of the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi [supra], cannot have application to the facts of the case before us. 26. In the case of S. C. Chandra and others v. State of Jharkhand and others [supra], the Supreme Court was considering an appeal preferred against an order passed by a learned Single Judge of the High Court of Jharkhand in a writ-application by which the learned Single Judge dismissed the writ-application by following the decision given by a Division Bench of the said Court. In the said case, the appellant before the Supreme Court filed the writ-petition in the High Court of Jharkhand seeking a writ of mandamus against the respondent nos. 3 to 6 to release and pay DA with arrears along with interest and prayed for a further direction upon the respondent nos. 3 to 6 not to close the school or in the alternative a direction was sought to be issued upon the respondent nos. 1 and 2 to take over the management and control of the school in question where all the writ-petitioners claimed themselves as teachers and non-teaching staff. 27. The Supreme Court, while dismissing the appeal held that the claim of parity in pay claimed by the writ-petitioner with the salary received by school teacher and Clerk working under the Government of Jharkhand cannot be entertained as the school was managed by BCCL and the said BCCL was only extending financial assistance from time to time. In such circumstances, according to the Supreme Court, the BCCL could not be saddled with the liability to pay the teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. According to the Supreme Court, it was essentially managed by an independent body of the management of BCCL. In that context, the Supreme Court further held that equal pay for equal work must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom equal pay is claimed and that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. We do not, for a moment, dispute the said proposition, but in the case before us, the question is whether the employees appointed by the State Government itself by regular process of selection and after being found to be competent, can be given remuneration which is even less than the amount received by an employee doing similar job in the regular scale of pay. We have already pointed out that in such circumstances, they should get minimum amount of remuneration received by a regular employee in the lowest slab of the scale. We, thus, find that the above decision is of no help to the respondents.

28. In the case of Jaghnath v. Union of India[supra], the Supreme Court was dealing with a petition under Article 32 of the Constitution filed by one Prahlad Singh claiming that he and other similarly placed Compositors working in the Government of India Presses all over India were entitled to the status and salary of Compositors, Grade I in the highly skilled category with effect from January 1, 1966. The said relief was claimed on the sole ground that one T.R. Thakur had already been given Grade I in the highly skilled category as a result of the judgment in his favour

given by the Himachal Pradesh High Court by which the said writ-application was allowed by the learned Single Judge and the Letters Patent Appeal against such judgment was dismissed. The High Court held that categorization as highly skilled and skilled on the basis of seniority alone was unreasonable and discriminatory. 29. In that context, the Supreme Court held that the judgment of the Himachal Pradesh High Court in T.R. Thakur s case did not lay down the correct principle of law and as such, the petitioners were also not entitled to get the said benefit. According to the Supreme Court, classification of Compositors of Government of India Presses into Grade I [Highly skilled] and Grade II [Skilled] based on experience arising out of length of service was not bad. According to the said decision, experience itself was merit and could be a valid basis for classification. 30. By relying upon the said decision, the learned Advocate General submitted before us that the decision of the Supreme Court in giving fixed pay for five years was justified as other employees in regular service had experience while the newly recruited persons had no such experience. We have already pointed out that on the basis of experience, the State Government can give less amount of remuneration for want of experience but such remuneration must not be less than total amount of remuneration payable to a person who is in the minimum slab of the scale payable to the class of persons doing similar job. Over and above, the period during which they would be performing such job on fixed pay should not be excluded from the total tenure of service for other purposes. 31. In the case of Joshi Tushar Tansukhbhai and others (supra), a Division Bench of this court was considering a Letters Patent Appeal arising out of an application under Article 226 of the Constitution of India where the writpetitioners who were in employment in various private Aided Schools challenged a Scheme framed by the State Government alleging disparity of the pay-scales of other employees who, according to them, were similarly placed and thus, the scheme was violative of the principles of equal pay for equal work. While dismissing the appeal filed against the order dismissing the writ-application, the Division Bench held that a decision based on the recommendation of an expert committee must weigh with the court while exercising the power of judicial review. 32. By relying upon the said decision, the learned Advocate General contended that we, by following the said decision, should not interfere with the scheme in question. 33. It appears from paragraph 30 of the said judgment that the Division Bench in the said decision held that in the absence of acceptable and recognizable duties and responsibilities of the contractually and the regularly appointed teachers in the said case, the fixation of pay and determination of parity in duties and responsibilities was a wider complex matter, which was for the executives to decide. 34. In paragraph 35, it was further held that there was no scope of applying the principles of equal pay for equal work when the petitioners therein belonged to separate category of teachers with reference to experience and more so, when the petitioners had accepted the terms and conditions envisaged and evolved in the scheme. 35. In our opinion, in view of the subsequent decision of the Supreme Court in the case of U. P. Land Development Corporation and Anr. v. Mohd. Khursheed Anwar and Anr. (supra), even if the employees on fixed pay had no experience, the total remuneration received by them by virtue of fixed pay cannot be less than the amount received by an employee in the lowest stage of the scale who are doing the similar job. For the above reason, we have accepted the submission of the learned Advocate General that for lack of experience the said class of employees may not get increment for a reasonable period but cannot be denied the minimum remuneration received by the employees doing similar job on the basis of regular scale of pay. Thus, the said decision is no longer a good law at least so far as it does not recognize the right to get the minimum remuneration of an employee in the lowest slab of pay as laid down by the subsequent Supreme Court decision. 36. We thus find the aforesaid decisions cited by the learned Advocate General do not help the respondent. 37. Mr. Trivedi lastly tried to convince was that the decision of the Supreme Court in the case of U.P. Land Development Corporation, which we have followed, was merely a direction and not one laying down law by the Supreme Court within the meaning of Article 141 of the Constitution of India and as such, we should ignore the said decision. We are afraid, we are not at all impressed by such submission in view of the fact that the Supreme Court in the said decision by way of laying down a law, specifically held that the decision of the Corporation in that case to effect economy by depriving the respondents even the minimum of the pay scale was totally arbitrary and unjustified and that the respondents had been arbitrarily deprived of their legitimate right to get minimum of the pay scale prescribed for scale of Assistant Engineers. We, therefore, respectfully follow the said decision of the Supreme Court in the case of U.P. Land Development Corporation and hold that it is the duty of the respondents not to deprive the

newly appointed employees of their legitimate right to get minimum of the pay scale prescribed for the respective scale of pay available to the employees doing the similar job. 38. We, therefore, find that this Public Interest Litigation should be allowed. The newly appointed employees, before getting the benefit of the regular scale on being found to be suitable on completion of the fixed period, should get at least, the total amount payable to an employee in the lowest grade of pay scale for that post from the date of their appointment. Similarly, the period during which employees would remain in the fixed scale before completion of the period of probation should be treated to be part of their service-period for all future benefits including the retiral ones once they are found to be suitable on completion of probation period. 39. The writ-application is thus allowed to the aforesaid extent. The State Government is directed to modify the aforesaid scheme and issue modified resolution in terms of this order within a period of one month. [BHASKAR BHATTACHARYA, ACTG. CJ.] [J.B.PARDIWALA, J.] pirzada/-