1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1491 OF 2001 WITH CIVIL APPLICATION NO.4905 OF 2006 WITH CIVIL APPLICATION (St.) NO.24415 OF 2009 1. Sahebrao Karbhari Gunjal, Aged 38 years, Occ. Service, R/o Shri Gadge Maharaj Ashram Shala, Bhanashiwre, Tq. Newasa District Ahmednagar. 2. Asaram Premchand Bhukkan, aged 44 years, Occ. Service, R/o Wardhaman Ashram Shala, Manikdawandi, Tq. Pathardi, District Ahmednagar. 3.Gahininath Namdeo Ghodke, Aged 36 years, occ. Service R/o Shri Ghadge Maharaj Ashram Shala, Warwandi, Tq. Rahuri, District Ahmednagar. 4. Ramnath Madhav Tanwade, Aged 36 years, Occ. Service, R/o Nirmalatai Kakade Ashram Shala, Mangrul, Tq. Shevgaon, District Ahmednagar. ..Petitioners Versus 1. The State of Maharashtra (Through its Secretary, Social Welfare Department, Mantralaya, Mumbai 32). 2. The Director, Vimukta Jatis, Nomadic Tribes, Other Backward Classes and Special Backward Classes Welfare, Maharashtra State, Pune. 2 3. The Divisional Social Welfare Officer, Nasik. 4. The District Social Welfare Officer, Ahmednagar. ..Respondents ... Advocates appearing for : Petitioner : Shri S.T.Shelke h/f Shri S.B.Talekar, Respondents : Smt. V.A.Shinde, AGP and Intervenors : Shri H.U.Dhage. ... CORAM : S.B.DESHMUKH & SHRIHARI P.DAVARE, JJ. Dated : November 4, 2009 ORAL JUDGMENT : (Per S.B.Deshmukh,J.) :- 1. Heard learned counsel for the respective parties. 2. This petition has been filed by the petitioners under Articles 226, 12, 14 and 16 of the Constitution of India. During pendency of this petition, the petition has suffered amendment with the leave of this Court. In view of the subsequent facts and events, the petitioners are not pressing some reliefs which they had sought in the petition proper. Learned counsel appearing for the petitioners, on instructions, submits that prayer clauses (A), (B), (C), (D), (E) and (F) are not being pressed on behalf of the petitioners. In stead, the petitioners are now seeking writ in terms of prayer clauses (CC), (DD) and (EE). 3 3. Fundamental Rights enshrined in Chapter III of the Constitution of India, in fact, is the gift to the Citizens of this nation. Apart from the fundamental rights, directive principles of the state policy have been laid down under Chapter IV of the Constitution. Article 38 contemplates that State shall secure a social order for promotion of the welfare of the people / citizen. Article 38(2) contemplates that State shall minimize the inequalities in income and shall endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst groups of people engaged in different vocations. Article 39 provides that the State shall direct its policy towards securing right to an adequate means to livelihood. In the case on hand, we are concerned with the policy under Article 39(d) i.e. "Equal Pay for Equal Work" for both - men and women. 4. In the State of Maharashtra, institutions registered under the provisions of the Societies Registration Act, 1860 ("Act of 1860" for brevity) so also under the provisions of the Bombay Public Trusts Act, 1950 (for short, the "Act of 1950") are engaged in imparting education and making available various other facilities to the students, including lodging and boarding. Amongst these institutions, some are financially aided by the Government of Maharashtra, in view of the policies adopted and various statutes holding the field. These institutions are broadly called as N.G.Os. However, principally, they are registered as "society" under the provisions of the Act of 1860 and a "trust" under the 4 provisions of the Act of 1950. 5. Earlier, the Education Department of the State of Maharashtra was saddled with the responsibility of promoting the welfare of the tribals. Lateron, it was the Social Welfare Department. The societies / trusts were permitted to run the educational institutions, Ashram Schools and Post Basic Ashram Schools. In view of the policy of the State Government, some of the Ashram Schools and Post Basic Ashram Schools were getting the grant- in-aid from the State Government. However, at the relevant time, there were no Recruitment Rules for teaching and non-teaching staff working in the Ashram Schools and Post Basic Ashram Schools. Considering the lack of Recruitment Rules, the State Government came with the Resolution dated 18.11.1983. A Director was appointed by the State Government in the original Social Welfare Department. The communication issued by the Director, Social Welfare Department, Maharashtra State, Pune dt. 14.3.1984 is relevant. In the reply affidavit filed on behalf of the State, it has been stated that by this communication dt.14.3.1984 and in view of the Government Resolution dated 18.11.1983, instructions have been issued in relation to the qualification, eligibility, pay scale, age limit and other service conditions for the teaching and non-teaching staff in the Ashram Schools. The Ashram Schools were contemplated initially not only for extending educational facilities to the children belonging to the tribals but were also contemplated for making available 5 accommodation to them. Various guidelines were issued, as we have mentioned herein above, for the appointment of the members of the staff. 6. In view of the availability of hostel accommodation by the aided societies, appointment of the Hostel Superintendent / Superintendent was also felt necessary. Earlier qualification of the Hostel Superintendent was considered as S.S.C., D.Ed. and for such person appointed on the post of Hostel Superintendent, salary offered was in the pay scale of Rs.290-540. The Government Resolution dated 17.8.1991 is annexed with the writ petition. In due course of time, the State has accepted the recommendations of the IV Pay Commission to the members of the teaching and non-teaching staff working in the Ashram Schools. This Government Resolution dated 17.8.1991 makes a reference to the existing pay scales of the various members of the staff working in the Ashram Schools and Post Basic Ashram Schools and the revised pay scales sanctioned by the State Government to them. We are concerned with the post of Hostel Superintendent/ Superintendent. This Government Resolution (Exhibit "A") makes a reference to the existing pay scale of Hostel Superintendent as Rs. 290-540. Revised pay scale sanctioned by the State Government was Rs.1200-2040. Amongst the Hostel Superintendents, earlier, higher pay scale to said post was not available i.e. before implementation of the IV Pay Commission's recommendations. However, after implementation of the IV Pay Commission's recommendations, State Government has 6 made available pay scale of Rs.1400-2600 and 1640-2900 to the candidates working as Hostel Superintendents. Higher pay scale was made available to the incumbents working in the selection grade (lower and higher). 7. In due course of time, V Pay Commission was appointed and it had submitted its recommendations. The State Government has accepted such recommendations made in relation to the teaching and non-teaching staff members of the Ashram Schools and Post Basic Ashram Schools. This Government Resolution dated 18.9.2000 (Exhibit "D") is also annexed with the petition. At item No.17 of this Government Resolution, pay scales shown to the Hostel Superintendents, as existed at that time, were Rs. 1200-2040 and Rs. 1400-2600 (Selection Grade). To these categories, sanctioned revised pay scale, in view of V Pay Commission's recommendations was Rs. 4000-6000. 8. The members of the staff - teaching and non-teaching - working in the Ashram Schools and Post Basic Ashram Schools were making various representations to the State Government in relation to their service conditions. Some petitions were also filed in this Court. One of them is Writ Petition No.4856 of 1999. This petition was heard by this Court and in view of the order passed by this Court in the said Writ Petition, dated 9.9.1999, the State came with the Government Resolution dated 5.2.2000. Item No.6 of this Government Resolution 7 shows that the State has relaxed the condition of eligibility so far as the Hostel Superintendents are concerned. It appears that at the relevant time, D.Ed. was required qualification for the person to be appointed as Hostel Superintendent. In view of item 6 of this resolution, this condition was relaxed and it was laid down by the State that the person holding H.S.C. qualification can be considered eligible for such an appointment. In other words, the requirement of D.Ed. was removed by the State. Preference, however, was given to the persons holding B.P.Ed. qualification. 9. All the activities pertaining to Ashram Schools were initially being looked after by the Education Department of the State of Maharashtra. Subsequently, Social Welfare Department came to be established for looking after these activities. In due course of time, the State thought it fit to have separate departments for the purpose of welfare of the tribals and therefore, after 10.3.1999, Social Welfare Department was carved out from the Education Department. Since then this department was known as VJNT/OBC/SBC Welfare Department (Special Welfare Department). Subsequent thereto, Social Welfare Department was further bifurcated in Tribal Development Department and Social Welfare Department. The present petitioners are working in the Social Welfare Department. This Department is also called as Social Justice Department. As we have said in earlier paragraphs, these are the various departments run by the State Government with an aim and objective to promote the 8 welfare of the tribals. Needless to say that all these departments of the State have to be in tune while executing the policies of the State Government. 10. The grievance of the petitioners pertains to part of the corrigendum issued by the State on 3.4.2007. This corrigendum is Exhibit R/1 Page 96 of the petition. It appears that the State has issued this Government Resolution dt.3.4.2007 for full time members of the teaching and non teaching staff of the Ashram Schools. It has been stated by the State in this Government Resolution that in view of the anomaly in the pay scales, the pay scale of Hostel Superintendent, in stead of Rs.4500-7000 was shown as 4000-6000 in the earlier Government Resolution dated 18.9.1999. This Government Resolution also makes a reference to another resolution dated 5.2.2000 which relaxes the qualification of the Hostel Superintendent. In view of this, the revised pay scale of Rs.4000-6000 was already sanctioned by the State. It further appears from this Government Resolution that before 5.10.2000, required qualification for Hostel Superintendent was H.S.C., D.Ed., however, after 5.2.2000, protection was resolved to be extended to the persons not holding D.Ed. qualification. In this view, by this Government Resolution and more specifically by corrigendum to this Government Resolution, the State has revised the pay scale of Hostel Superintendents. This revision is in relation to Government Resolution dated 18.9.2000. By this revision, now two categories have been identified. First category of the Hostel Superintendent was given 9 pay scale of Rs.4500-7000 to those persons working as Hostel Superintendents and appointed prior to 5.2.2000 and holding educational qualification of S.S.C., D.Ed. Another category of the Hostel Superintendents i.e. all other persons working as Hostel Superintendents were given pay scale of Rs.4000-6000. 11. The case of the petitioners, according to them, is governed by category No.2, created by the corrigendum. Learned counsel appearing on behalf of the petitioners submits that there is no difference in the duties allotted to the Hostel Superintendents holding qualification of S.S.C., D.Ed. appointed prior to 5.2.2000 and the petitioners who are also appointed prior to 5.2.2000, however, are not holding the qualification of S.S.C., D.Ed. According to the petitioners, such discriminatory treatment extended to the petitioners by the State, in view of the corrigendum, is hit by Article 14 read with Article 39(d) of the Constitution of India. 12. On behalf of the State, our attention has been drawn to the affidavit in reply. In this affidavit in reply, briefly stated, it has been contended that earlier posts of Hostel Superintendents and teachers working in the Ashram Schools and Post Basic Ashram Schools were inter changeable. According to the State, persons working as Hostel Superintendents in the same management could be transferred to another Ashram Schools as a teacher and vice versa. Secondly, duties assigned to the teachers and work to be performed by the 10 teachers is altogether different than all the persons appointed and /or working as Hostel Superintendents. Reference to various recommendations of IV and V Pay Commissions have also made in this reply. State has also accepted that relaxation of qualification i.e. removal of condition that the person must have obtained D.Ed. has been done away. According to the State, the Social Welfare Department and Tribal Development Departments are independent and they are having their own policies. It has been further contended in this reply affidavit that there is a reasonable nexus with the object sought to be achieved while making the Government Resolution pertaining to cut of date i.e. 5.2.2000. In other words, corrigendum, which is being attacked by the petitioners is being supported by the State in this affidavit in reply. Paragraph No.9 of the reply affidavit has been emphasised on behalf of the State. In this paragraph it has been contended on behalf of the State that DNT/OBC and SBC Welfare Department, Tribal Department and Social Welfare Departments are three different and separate departments of the State of Maharashtra. These are being headed by independent Directors, who are responsible for implementation of the State Policies. These departments cannot be compared for the purposes of educational qualifications or the pay scales. On these grounds, the petition is sought to be dismissed. 13. "Equality" has been guaranteed under Article 14 of the Constitution of India. Equals have to be treated equally and un-equals 11 ought not to be treated equally. However, reasonable classification is permissible under Article 14 of the Constitution. The classification must be founded on the basis of an intelligible differentia, which distinguishes those that are grouped together from others and differentia must have a rational relation to the object sought to be achieved. We have also considered Article 39(d) of the Constitution with reference to the facts and circumstances of the present case, which are not seriously disputed, even on behalf of the State. The classification which has been reflected from the Government Resolution dt.3.4.2007, in our view, does not have any rational basis. The group of the persons holding the position as Hostel Superintendents, with qualification S.S.C./ D.Ed. and appointed prior to 5.2.2000, have been grouped together and pay scale of Rs. 4500-7000 has been sanctioned to them. Other persons holding the same position i.e. Hostel Superintendents working in aided Ashram Schools and Post Basic Ashram Schools have been sanctioned pay scale of Rs.4,000-6,000. In the second group, details of which have not been furnished, but then from this Government Resolution it appears that the Hostel Superintendents who are not coming within the sweep of first group of Hostel Superintendents holding S.S.C., D.Ed. qualification and appointed prior to 5.2.2000 have been grouped together. All other Hostel Superintendents even appointed prior to 5.2.2000, confirmed in the service, in view of the policy of the State Government holding the field at the relevant time, have been left out for no rational and such an un-equal treatment has been tried to be 12 supported. The nature of the duties, conferred upon the Hostel Superintendents in the first group and the nature of the duties to be performed by the left outs are similar, virtually, can be said to be same. There is no difference or distinction in the responsibilities saddled on the first group and the Hostel Superintendents left out. There is no statute and/or subordinate legislation in relation to the pay scales of two groups However, action of the State needs to be within the parameters of Article 14 and Article 39(d) of the Constitution of India. 14. At this stage, it is relevant to refer to the Government Resolution dated 3.6.2008, copy of which is made available by the learned counsel appearing for the petitioners. It is taken on record and marked Exhibit "X" for reference. This copy is also made available to learned Assistant Government Pleader appearing for the State and it's authorities. The reason for issuance of this Government Resolution seems to be an order passed by this Court at Nagpur Bench in Writ Petition No.473 of 2004. This Government Resolution makes a reference to Writ Petition No.473 of 2004 and the order passed by this Court at Nagpur in Writ Petition No.561 of 2008. It appears that in Writ Petition No.473 of 2004, this Court, had issued some directions and in view of this direction, the State Government has issued the orders on 6.4.2004 relaxing and/or removing the condition of holding D.Ed. qualification by the person to be appointed and/or appointed as Hostel Superintendents. Review of this order was sought on behalf of 13 the State. It appears from this Government Resolution itself that the review sought by the State has been rejected by this Court. Another Writ petition No.561 of 2008 seems to have been filed in this Court at Nagpur seeking enforcement of the writ issued by this Court in Writ Petition No.473 of 2004. Said Writ Petition seems to be pending at Nagpur. In this background, this Government Resolution states that aided Ashram Schools and Post Basic Ashram Schools run by the societies / trusts under the Tribal Development Department shall enjoy the relaxation of D.Ed. qualification by such persons working as Hostel Superintendents. They are considered to be trained Hostel Superintendents and they were granted the pay scale of Rs.4500-7000 from 1.6.2008. 15. Learned counsel for the petitioners relied upon the judgment of the Supreme Court in the matter of Jaipal and others Vs. State of Haryana and others [AIR 1988 SC 1504]. With the assistance of the learned counsel for the parties, we have read paragraph No.2 of the said judgment. The facts have been listed by the Supreme Court in the said paragraph. Two groups were formed by the State of Haryana. The Supreme Court has considered the grievance of the petitioners and held that the petitioners therein are entitled for the same pay i.e. doctrine of "Equal Pay for Equal Work" was accepted. In our view, the facts brought before us in the case on hand are nearer to the facts in the cited judgment. The ratio of this judgment, in our opinion, squarely applies to the present case. 14 16. Turning to the case on hand, they have given details in the amended petition pertaining to their qualification, appointment and their status as a permanent Hostel Superintendents. Such details are given in paragraph No.18A of the petition. Orders of their confirmation on a particular date/s also have been annexed with the petition. There is no dispute regarding this aspect of the matter. From these details, it appears that the petitioners 1 to 3 are graduates and have also acquired Bachelors Degree in Physical Education. Petitioner No.4 is also graduate and has obtained B.Ed. qualification. In the light of these reasons which we have recorded above, in our view, this petition needs to be allowed in terms of prayer clauses (CC), (DD) and (EE). 17. Some other similarly situated persons have filed Civil Application (St.) No.24415/2009. Copy of this Civil Application is made available to learned Assistant Government Pleader. We have also heard learned counsel appearing for the respective parties in the said Civil Application. We allow this Civil Application in terms of prayer clause (B). We have also heard learned counsel appearing for the applicants in this Civil Application. Though this Civil Application is on stamp number, we have accepted the same, heard the parties and disposed of the same. Registry to register the Civil Application. The applicants in this Civil Application are similarly situated to that of the petitioners. Needless to mention that they are also entitled to receive all the benefit which 15 will be received by the petitioners in view of this order, i.e. in terms of Prayers (CC), (DD) and (EE). 18. In the result, Writ Petition is allowed in terms of prayer clauses (CC), (DD) and (EE). Rule made absolute in above terms with no order as to costs. 19. Civil Application No.4905 of 2006 has become infructuous since fixed date of hearing was asked for. It stands disposed of. No order as to costs. (SHRIHARI P.DAVARE,J.) (S.B.DESHMUKH,J.) ... akl