IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10454 of 2003 1. JAGANNATH JHA, son of late Nageshwar Jha, P.S. Dumra, P.O. Chatra, P.S. Arer, District Madhubani, at present posted as Instructor in the Agriculture Farm Mechanic +2 School- Government +2 School, Zila School, Motihari 2. Vijay Kumar, son of late Shyam Lal, resident of Boulia Road, P.S. and town Sasaram, District Rohtas, at present posted as Instructor in the Agriculture Farm Mechanic +2 School- Government +2 School, Zila School, Motihari 3. Akhileshwar Prasad Singh, son of late Ramjeevan Singh, resident of village Amwaria, P.S. Dhaka, District East Champaran, at present posted at Instructor in Shri Krishna Marwari +2 School, Mokama … Petitioners Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Department of Secondary Education, Govt. of Bihar, Patna 3. The Director, Secondary Education, Bihar, Patna, Intermediate Council Bhawan, Budha Marg, Patna … Respondents ----------- 3. 20.9.2010 Having heard counsel for the petitioners and the counsel for the State as with regard to the following prayer: “This is an application for issuance of a writ in the nature of certiorari to quash memo no. 143 dated 18.11.2002, issued under the signature of the Director, Secondary Education, whereby and whereunder the claim of the petitioner no.1 for grant of pay scale at par with other Lecturers of +Schools has been rejected on the ground its being without any 2 basis and further for issuance of a consequential writ in the nature of mandamus commanding and directing the respondent authorities to pay the salary of the petitioners in the scale of Rs. 6500 to 10,500/- at par with other Lecturers of +Schools on account of performance of similar nature of duty and on the basis of maxim „equal pay or equal work‟ and further to provide other benefits like payment from non-plan head etc. and for issuance of an appropriate writ, order or direction, for which the petitioners may be found legally entitled to in the facts and circumstances of the case.” this Court is of the firm view that the impugned order dated 18.11.2002 rejecting the prayer of the petitioners for grant of equal pay for equal work does not suffer from any infirmity wherein its has been held as follows:- lsdsUM~h izkFkfed ,oa O;Ld f'k{kk foHkkx] fcgkj vkns'k iVuk] fnukad 18 uoEcj 2002 la[;k 9@U;k;k&okn 44@2002 f'k0&143@Jh txUukFk >k] vuqns'kd dk ,xzhdYpj QkeZ eSdsfud] ftyk Ldwy] eksrhgkjh iwohZ pEikj.k }kjk lh0MCyw0ts0lh0 la[;k& 8257@2002 ds ikfjr vkns'k ds vkyksd esa muls izkIr vH;kosnu lE;d fopkjksijkar fuEuor fu.kZ; fy;k tkrk gS& 1- O;olkf;d f'k{kk vuqns'kd ,oa $2 Lrj ds O;k[;krk ds fy, osru iqujh{k.k lfefr dh vuq'kalk ds vuqlkj vyx vyx 3 iqujhf{kr osrueku fu/kkZfjr gSA 2- O;olkf;d f'k{kk ;kstukUrxZr fu;qDr vuqns'kd ,oa O;k[;rk ds in esa Hkh ewyHkwr vUrj gSA mi;qZDr nksuks dksfV ds inks ads fy, ;ksX;rk hkh vyx vyx fu/kkZfjr gS rFkk bu inksa fo:n~/k fu;qfDr ds fy, Hkh vyx vyx fjfDr ds lkFk fy;k laca/kh foKkiu izdkf'kr fd;k tkrk gSA 3- Jh >k }kjk O;kolkf;d f'k{kk vUrxZr vuqns'kd ds fu;qfDr ds fy, fn, x, foKkiu ds vk/kkj ij gh O;kolkf;d f'k{kk ;kstukUrxZr ,xzhdYpj QkeZ eSdsfud O;olk; gh fofgr osrueku esa esa fu;qfDr ds fy, vkosnu fd;k x;k FkkA ,slh fLFkfr esa Jh >k }kjk vc mlh vk/kkj ij viuh fu;qfDr 11 vkus ,oa fui;qfDr dh 'kRrksaZ dks ekurs gq, ;ksxnku djus ds mijkar nwljs dksfV ds in ;kfu 1421 O;k[;rk ds in ftudk osruekun 16500&10500@& gS ds vuqlkj osrueku fn;s tkus dk lkFk djus dk dksbZ vkSfpR; ugha curk gS vkSj budh 1420 O;k[;krk dk osrueku ekaxuk mfpr ugha gSA ftl in ds fy, bUgksaus vkosnu fn;k Fkk] mlh in ij fu;qfDr ds mijkar mUgsa mlh in dk osrueku vuqekU; gSA Jh >k dks O;kolkf;d f'k{kk ;kstuk vUrxZr ds in dk osrueku vuqekU; gksxkA buds }kjk O;k[;krk ds osrueku ds nkok dk dksbZ fu;elaxr vk/kkj ugha gSA vr% buds nkos laca/kh izkIr vH;kosnu dks vLohd`r fd;k tkrk gSA g0@& ch0ch0JhokLro lfp0 ek/;fed f'k{kkA It is not in doubt that the appointment of the petitioners was made on the post of Instructor in +2 Schools specifying a pay scale of Rs. 1500-2750. The petitioners having accepted the terms and conditions of advertisement and having been appointed had found themselves in an uneasy situation because in those very +2 schools the Government had also appointed Lecturers 4 for teaching and therefore, an issue cropped up in the mind of the petitioners that as they also are doing teaching work in those very Institution which lead to an equivalent degree from the Intermediate Council they should also be treated as par with the teacher and be paid salary alike the lecturers of +2 institution. The authorities have considered this aspect from all possible facets and having considered them it has come to a finding that not only the post of Instructor is an inferior post requiring lesser qualification but also that two posts have got different duties altogether. The submission of the learned counsel for the petitioners that since the requirement of educational qualification for the post of Instructor is degree or diploma and they are also doing work of teaching by imparting instructions to the students of the same institution and of the same +2 course, they should be treated at par with the Lecturers of +2 institution has to be only noted for its being rejected. A +2 Lecturer has to be essentially hold the qualification of being 5 a post graduate in the subject concerned after completing his graduation. Therefore, the Government had the reasons to fix a pay scale separate and higher to one given to posts requiring qualification of graduation. The petitioner‟s post, therefore, would be one where entry level qualification was either a diploma or degree whereas the post of Lecturer had required a Post-graduation qualification and therefore, the differentiation on the basis of educational qualification itself could be sufficient to make a clear distinction also for grant of higher pay scale to the lecturers of +2 schools. Apart from that the fact that the duty of the Lecturers of these +2 institutions is to teach subjects of main curriculum which by itself worn form a separate class, inasmuch as the vocational training given by way of Instructor including the petitioners or technical trainers for subsidiary subjects cannot make them entitled to seek parity with the lecturers even on the basis of duty assigned to the post. A main subject being taught in 6 the +2 course and a subject of technical training cannot have even otherwise the same equivalence and in that view of the matter the duty of post also cannot be said to be the same. Time and again the Apex Court and this Court has clearly laid down that the principles of „equal pay for equal work‟ can not be mechanically applied merely on the basis of working in the same institution or by claiming parity in the work unless all the parameters of both the posts are found to be the same and similar. Recently this Court has considered this aspect in the case of Shyam Prasad Singh Vs. State of Bihar and others in C.W.J.C. No. 1198 of 2004, disposed of on 30.8.2010 where it has been held that:- "The next line of the submission of the learned counsel for the petitioner that since the post of Senior Technical Assistant, Senior Research Assistant, Training Assistant had initially required the same qualification and were provided with the same pay scale in the advertisement dated 28th August, 1985 as that of Assistant Professor and therefore the aforementioned 7 posts have to be held equivalent post of Assistant Professor and therefore, once holder of any of these post of Technical Assistant or Senior Technical Assistant or Senior Research Assistant was granted U.G.C. pay scale, the petitioner holding the post of Training Assistant would also be entitled for grant of U.G.C. pay scale on the principle of „equal pay for equal work‟ seems to be an argument of desperation. As noted above, the petitioner himself accepts that there are three disciplines in the University, namely, Education, Extension and Research. The U.G.C. pay scale is being invariably given to a person working on a teaching post or its equivalent post associated with teaching work. The persons, who are working in extension discipline, are not necessarily involved in the teaching work. The petitioner working as a Training Assistant in Kishan Vikas Kendra imparting training to the farmers cannot be held to be the holder of equivalent post of a Senior Research Assistant in the education side or Senior Research Assistant engaged in research wing. True it is for them the entry qualification at one point of time was the same but that 8 cannot be a parameter of holding the equivalent post. The test laid down by the Apex Court applying the principle of equal pay for equal work has also been quite severe. Reference in this connection may be made to the judgment of Apex Court in the case of Federation of All India Customs and Central Excise Stenographers Vs. Union of India reported in A.I.R. 1995 S.C. 1291. Rejecting the claim of Stenographers of the Customs and Central Excise to be treated at par with Stenographers attached to Central Secretariat it was held as follows:- "The same amount of physical work may entail different quality of work, some more sensitive some requiring more tact, some less- it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. It has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be 9 interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or in fact." As a matter the Apex Court in the case of State of M.P. Vs. Pramod Bhartiya reported in (1993) 1 S.C.C. 539 had rejected the claim for parity of pay scale made by Lecturers of Higher Secondary Schools with lecturers of non technical lecturers of Technical schools. Yet again in the case of State of U.P. Vs. Prem Lata Mishra reported in A.I.R. 1994 S.C. 2411 it has been held by the Apex Court that :- "As a prerequisite for upholding the claim, the claimants must not only establish that the nature of the work is identical but also that there was no reasonable basis to treat them separately. Mere similarity in the nature of the work of two groups, is not sufficient." The Apex Court in the case of Union of India Vs. Pradip Kumar Dey reported in (2000) 8 S.C.C. has also held that claim for equal pay for equal work cannot be sustained which might lead to alteration of 10 the pattern of hierarchy requiring reorientation and restructuring of other parts above and below involving other establishment and thereby likely to produce chain reaction. In the background of settled law the petitioner working on a non-teaching post cannot claim posts with the teaching post and its pay scale. Such intricate issues have to be left for consideration of Pay Commission and since the Pay Commission of the State Govt. has itself found a reasonable classification for giving different pay scales to the non-teaching post held by the petitioner, the same can not be held as arbitrary." In that view of the matter, as this Court has also clearly found justifiable reasons recorded in the extracted impugned order dated 18.11.2002 the same must be upheld. Infact there is absolutely no merit in the claim of the petitioners for holding the post of Instructor to be equivalent to the post of lecturers of those +2 schools and as such their prayer for equal pay for equal work has to be rejected. 11 That being so, this application is wholly misconceived and is, accordingly, dismissed. There would be, however, no order as to costs. (Mihir Kumar Jha,J.) Surendra/