rit Petition Civil NO 194 of 1988
etc etc
764 Under Article 32 of the Constitution of India
DD Thakur TS Krishnamurthi Iyer Rajesh Mitra Ms Santosh Kalra HK Puri RL Roshan SS Sabharwal SK Sabharwal and MKD Namboodiri for the Petitioners
PP Rao SN Kacker G Rath Mrs A Mathur A Mariarputham CM Nayyar DS Narula Kailash Vasudev Mrs Uma Jain and PK Mehta for the Respondents
The following Order of the Court was delivered O R D E R The writ application under Article 32 and the transferred writ petitions from the Delhi High Court relate to selection of medical graduates for undertaking post graduate study for the year 1988 under the Delhi University
In Dr Dinesh Kumar vs Motilal Nehru College Allahabad  Ors this Court emphasised the desirability of post graduate education in the Medical Faculty as far as possible to have uniformity throughout the country
It therefore commended to the educational institutions which followed the system of one year house job followed by two years  post graduate course to switch over to the pattern of a three year post graduate course with house job in the first year
On September 25 1987 in the very same matter when the Court made an order reported in   it was pointed out that in some States the post graduate course is for a term of two years with one year housemanship while in the other States it is a full term of three years
This Court therefore directed with a view to bringing about uniformity on the basis of the principle accepted in the earlier decision that for admission beginning from 1993 there would be only one pattern namely a three year integrated course without any separate housemanship
The University of Delhi decided to adopt the three year course for the post graduate degree and a two year course for the diploma commencing from the academic Session of 1988
With a view to mitigating hardship to candidatesstudents who had already completed the house job and had become entitled to undergo the postgraduate course in two years as a transitory provision the University decided to continue the practice prevailing prior to 1988 for a year
The University evolved a scheme where under the number of seats for the post graduate course and diploma course available in the previous year for a student who had completed one year s housemanship were left untouched
The number of such seats are 198 for the degree course 765 and 111 for the diploma course
Out of these 25 being placed at the disposal of the Government of India to be filled up on all India selection basis the exact number available to be filled up by the University worked out to 149 and 84 respectively
As a transitional provision intended for the 1988 Session only the University agreed to fix 75 quota representing 139 seats in the three year degree course and 66 seats in the two year diploma course
The following was specified a part of the Scheme Important Note Candidates who have done house jobjunior Residency for a period of one year are not eligible for admission to 3 years Post Graduate Degree and 2 years PostGraduate Diploma Course
 The prospectus however prescribed one common selection test
A set of writ petitions were filed before the Delhi High Court challenging the scheme of the University mainly on the basis that when there was one selection test merit should prevail and classification in the manner indicated by the scheme was bad
Reliance was placed before the High Court on observations of this Court that for post graduate degree the test of excellence should prevail and the level of high proficiency should be maintained
The High Court made an interim order requiring the University to have the selection completed on the basis of merit adjudged in the common selection test
This is a dispute essentially between the University and the freshers who have not done housemanship on one side and the seniors who have already completed housemanship for one year on the other
There can be no dispute that the seniors and the freshers belong to two separate categories and cannot be said to be equals
If the University had not prescribed a common selection test for these two categories the question of test of comparative merit would not have arisen
If that had not been done perhaps the High Court would not have made its direction and the difficulty which has arisen would not have cropped up
The classification of freshers and those who have completed a year s housemanship though a perceptible one loses its importance in view of the traditional situation that in the system prevailing prior to 766 1987 both the groups were treated as qualified for appearing at the selection test for post graduate study
We are told by learned members at the Bar that after transitory Note extracted above disappears in the coming year the old practice shall again revive
This is an unfortunate situation
There being no limit to participation in the selection test for post graduate study candidates who become unsuccessful year after year in the absence of any limit keep on taking chances
This certainly is not a desirable feature and should be looked into by the appropriate authorities quickly
If the merit list of the selection examination is followed more of seniors are entitled to admission and the scheme of reservation would not work
As we have already pointed out in the name of what counsel calls convenience and how inconvenient it was is not known the Delhi University made an initial mistake of having a common selection test for two categories of candidates
While we reiterate the view expressed by this Court on more than one occasion that selection in the higher courses should be on the basis of merit in the peculiar facts and circumstances arising in this case purely confined to a transitory measure the situation has to be handled not by first principles but by a somewhat informed pragmatic adhocism
This has to be so because the situation would not reoccur
Again the initial mistake of the Delhi University had brought some amount of confusion and it has mounted up following the intervention by the High Court
The time available is too short as under the Scheme intended to apply to the whole country the course has to begin on the 2nd of May 1988
In this background we are of the view that the impasse created on account of the rival claims advanced by the freshers and the seniors has to have a rough and ready solution yet not arbitrary and as acceptable and satisfying as possible
We find that the two year degree course speciality wise has 149 seats while the three year degree course has 139 seats
For convenience we extract the particulars made available at page 4 of the Bulletine of Information
It may be pointed out that there are 1003 candidates as against total 270 vacancies degree and diploma courses together for the seniors and there are 331 candidates as against 205 vacancies for the two courses for the freshers
With a view to providing some more seats for seniors we suggested to Mr Rao appearing for the University that the number of seats may be increased and he has on instructions agreed provided the Union of India provides funds and the Medical Council agrees to accommodate
There are 21 specialities as indicated above
We direct that the University shall create one seat in every speciality and thus 21 additional seats will 767 be available over and above the 149 seats fixed by the University representing the 75 quota
To this enhanced number of seats the 25 reservation of All India Selection shall not apply
From the reserved seats made for the freshers 21 seats being one from every speciality shall be taken away and made available to the seniors
Thus 42 seats in all will be available for the seniors in the Post Graduate course to be filled up on the basis of inter se merit keeping the senior group apart
The creation of the 21 seats will involve additional funds to be provided by the Union of India
It will also require approval of the Medical Council of India and there will perhaps also be necessity for permitting the variation of guide student ratio
Since it is for one year and there would be no scope for recurrence and this has arisen in peculiar circumstances explained above we direct the Government of India to take our order made without hearing it with a sense of understanding and make the necessary provisions
We also suggest to the Indian Medical Council to provide the necessary accommodation by relaxing the requirements
These may be done quickly so that the time schedule may not be affected
NPV Petitions disposed of


Summary:
The petitioner was initially appointed in the year 1967 to the post of Teacher Co ordinator  in the pay scale of Rs210 425 in a Research Project funded by the Indian Coun cil of Medical Research
As the unit where the petitioner was employed was taken over by the All India Institute of Medical Sciences on 171970 his services stood transferred to the said Institute and he continued to hold the post of Teacher Coordinator in the Institute
Though the post was redesignated as Hearing Therapist  with effect from 3872 the same scale of pay viz Rs210 425 continued
Pursuant to the recommendations of the Third Pay Commis sion the pay scale of Hearing Therapist was revised to Rs425 700 with effect from 111973 and since then the petitioner continued to draw salary in the said scale
The petitioner made several representations to the respondentauthorities to revise his pay scale and to place him in the pay scale prescribed for Speech Pathologist  and Audiologist  viz Rs650 1200
Since no relief was granted the petitioner invoked the jurisdiction of this Court by means of a writ petition under Article 32
The petitioner contended in his writ petition that as Hearing Therapist  he performs the same duties and func tions as Senior Speech Pathologist  Senior Physio Thera pist  Senior Audiologist  and 958 Speech Pathologist  that the qualifications prescribed for the aforesaid posts are almost similar and they are working in the same institution under the same employer yet the respondent authorities practised discrimination in refusing to accept his claim for equal pay
It was further contended that the Third Pay Commission ignored the claim of Hearing Therapist  although it had granted higher scale of pay for similar posts of Speech Therapist  Senior Speech Patholo gist  and Audiologist  and that Speech Therapists  performing similar types of duty as are performed by the petitioner had been granted higher pay scale in other organ isations like Safdarjung Hospital PGI Chandigarh and Medical College Rohtak
The respondents having thus failed to implement the Directive Principle of Equal pay for equal work  as contained in article 39d of the Constitution in violation of articles 14 and 16 the petitioner claimed relief for the issuance of a writ of mandamus directing the re spondents for fixing his pay in the scale of Rs410 950 with effect from 111970 and thereafter in the scale of Rs650 1200 with effect from 111973
The respondents contested the writ petition by asserting that the petitioner cannot compare himself with Senior Speech Therapist  Senior Physio Therapist  Senior Occu pational Therapist  Audiologist  or Senior Therapist  as qualifications duties and functions of these posts are altogether different and distinct from those prescribed for Hearing Therapist  that there is no equality between the petitioner and the persons holding the aforesaid posts that the Institute had created different posts with different pay scales having regard to the qualifications duties and responsibilities of the posts
The petitioner s plea of discrimination was emphatically denied
Dismissing the writ petition the Court HELD The principle of Equal pay for equal work  cannot be invoked invariably in every kind of service particular ly in the area of professional services
967H Dr C Girijambal vs Government of Andhra Pradesh  relied on
In the instant case even assuming that the petitioner performs similar duties and functions as those performed by an Audiologist  it is not sufficient to uphold his claim for equal pay
In judging the equality of work for the purposes of equal pay regard must be had not only to the duties and functions but also to the educational qualifica tions 959 qualitative difference and the measures of responsibility prescribed for the respective posts
Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities the principle of Equal Pay for Equal Work  would not apply
964H 965A B State of Mysore vs Narasing Rao   Union of India vs Dr Mrs SB Kohli   Jammu  Kashmir vs Triloki Nath Khose  Ors   Ganga Ram vs Union of India   Mohammad Shujat Ali of All India Customs  Central Excise Stenographers Recog nised  Ors
vs Union of India  Ors
  and State of UP  Ors
vs Sh
JP Chaurasia  Ors  referred to
Merely because Speech Therapists performing similar duties and functions in other institutions are paid higher pay scale is no good ground to accept the petitioner s claim for equal pay
In the absence of any material placed before the Court it is not possible to record findings that the petitioner is denied equality before the law
Moreover if the employer is not the same the principle of Equal pay for equal work  would not be applicable
969E F The doctrine of Equal Pay for Equal Work  is not an abstract one it is open to the State to prescribe different scales of pay for different posts having regard to educa tional qualifications duties and responsibilities of the post
The principle of Equal Pay for Equal Work  is ap plicable when employees holding the same rank perform simi lar functions and discharge similar duties and responsibili ties are treated differently
The application of the doc trine would arise where employees are equal in every respect but they are denied equality in matters relating to the scale of pay
The principle of Equal Pay for Equal Work  has been enforced by this Court
962D F Randhir Singh vs Union of India  Ors   Direndra Chemoli  Anr
vs State of UP  VJ Thomas  Ors
vs Union of India  Ors
 1985 Supp SCC 7 P Savita vs Union of India  Ors 1985 Supp SCR 101 Bhagwan Dass vs State of Haryana 1987 4 SCC 634 and Jai Pal  Ors
vs State of Haryana  Ors
 1988 3 SCC 354 referred to