IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1198 of 2004 SHYAM KISHOR PRASAD SINGH, son of Shri Ram Chandra Singh, resident of village Meer Nagar, P.S. Sarmera, P.O. Meerpur, District Nalanda, presently posted as Junior Research Assistant Zonal Centre Majhauliya, West Champaran … Petitioner Versus 1. THE STATE OF BIHAR through Agricultural Production Common Department of Agricultural, Bihar, Patna 2. The Rejendra Agricultural University through its Registrar, Pusa, District Samastipur 3. The Vice Chancellor, Rajendra Agricultural University, Pusa, District Samastipur 4. The Director, Administration, Rajendra Agricultural University, Pusa, District Samastipur 5. The Indian Council of Agricultural Research through its Secretary having office at Krishi Bhawan New Delhi 6. The Associate Director Research Regional Research Institute Agwanpur, P.S. and District Saharsa … Respondents. ----------- For the Petitioner :Mr. Vijay Shankar Srivastava, Advocate Mr. Pankaj Kumar Das, Advocate For the State : S.C.-6 PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (30.08.2010) Mihir Kr. Jha,J. Heard counsel for the petitioner and the counsel for Rajendra Agriculture University. The prayer of the petitioner in this writ application reads as follows: “A) For issuance of a writ of mandamus or any other writ or order or direction, commanding the respondents to make payment of salary of the petitioner in the 2 U.G.C. pay scale of Rs. 700-1600 (revised pay scale 2200-4000) to the petitioner with effect from the date of their replacement in the Government which is prescribed for the teacher of Agricultural Colleges and Agricultural Universities of the Country in general and respondent University in particular with consequential benefits.” Counsel for the petitioner would submit that once the University had taken the decision to grant U.G.C. pay scale to the holders of the post of Senior Technical Assistant who were also recruited in the same transaction with the petitioner on the post of Training Assistant and in the same pay scale of Rs. 550-900, they would be bound to also pay the U.G.C. pay scale to the petitioner. In this context reliance has been placed on the advertisement of the post of Training Assistant as also post of Senior Technical Assistant which had been filled up by the University on the basis of the aforementioned advertisement dated 28th August, 1985. Reliance also has been placed on the proceedings of the meeting of the Board of Management dated 19th May, 1994 3 wherein one Shivnandan Singh holding the post of Senior Research Assistant was granted U.G.C. pay scale with effect from 14.12.2002 which was also implemented by the University‟s order dated 8.6.1995 (Annexure 19). Counsel in fact had also brought to the notice of this Court the provisions of the Statutes, 14.1(b) to suggest that there is an enabling provision giving power to the University to consider the cases of the Agricultural Inspector, Senior Technical Assistant, Junior Technical Assistant, Demonstrators, Research Assistant and equivalent, if any, working in the service of the Rajendra Agricultural University for appointment/ absorption/ promotion on the post of Assistant Professor cum Junior Scientist, subject to the condition that the they hold the requisite qualification and eligibility for the post of Assistant Professor. He has also relied on the order of a Division Bench dated 13.5.2010 in L.P.A.No. 1530/2009 affirming the order dated 28.10.2009 in C.W.J.C.No. 10416/2009 wherein a direction was given that 50% of the post should be filled up by way of 4 promotion/ absorption as provided under Clause 14.1(b) of the amended Statutes. Counsel for the University, on the other hand, with the help of stand taken in the counter affidavit would submit that the petitioner will not be entitled for grant of U.G.C. pay scale which is only payable to a teaching employee. In this context it has been further explained that the petitioner was temporarily appointed on the post of Training Assistant in Krishi Vikash Kendra under a Scheme sponsored by the Indian Council for Agriculture Research (I.C.A.R.) in the pay scale of Rs. 550-900 which is a non-teaching post in the University and the petitioner had all along continued against such non-teaching post and as such, his claim for grant of U.G.C. pay scale of Assistant Professor (Lecturer) of Rs. 700- 1600 and its revised pay scale of Rs. 2200- 4000 is wholly unsustainable. In this context reference has also been made to a specific stand of University with counter affidavit with regard to requirement of prior sanction of the State Government in terms of Section 25(2) of the Rajendra 5 Agriculture University Act for enhancement of the pay scale of any employee of the University. From the pleadings on record as also the submission of learned counsel for the parties it would thus become clear that there is a concealed prayer in this writ application inasmuch as the petitioner could be given U.G.C. pay scale which is payable only to teaching employees of the University only if either the petitioner was promoted or upgraded from the existing non-teaching post of Training Assistant to a teaching post of Assistant Professor cum Junior Scientist or its any equivalent post on teaching side. Therefore, the prayer of the petitioner for payment of salary in the U.G.C. pay scale on the face of record by virtue of his holding the non-teaching post of Training Assistant would not be available till the petitioner‟s absorption/ promotion on teaching post is made. The next line of the submission of the learned counsel for the petitioner that since the post of Senior Technical Assistant, Senior Research Assistant, 6 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 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 7 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 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 8 who are charged with fixing the pay scale has to be left with them and it cannot be 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 9 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 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. The plea of discrimination as highlighted by the counsel for the petitioner by equating the case of the petitioner with one Sri S.N.Singh, Senior Research Assistant on the basis of a decision of the Board of Management dated 18/19th May, 1994 (Annexure 17) or 10 consequential order dated 8.6.1005 also seems to be far-fetched and in fact misplaced. Mr. S.N.Singh has been shown to be Senior Research Assistant in the University with effect from 14.12.1982 whereas the petitioner relies on an advertisement of the year 1985 to claim parity of pay scale. Obviously recruitment of Mr. S.N.Singh was never made on the basis of advertisement contained in Annexure 1. Secondly, in the case of Mr. S.N.Singh he was given U.G.C. pay scale at a point of time when there was no similar provision in the Statutes of the University containing provision of promotion/ absorption and therefore, if the University in the case of Sri S.N.Singh by holding him on Research side and associated with teaching work had granted the U.G.C. pay scale, the same ipso factor cannot be made applicable in the case of the petitioner in view of the present provision made in the amended Statutes. As noted above, this Court in the present case will have to first hold the Training Assistant and Senior Research Assistant doing the same nature of work in order to 11 allow the benefit which was at one point of time way back in the year 1995 given to Mr. S.N.Singh and probably became a precedent for grant of similar benefit to one Sri R.P.Sharma in whose case his initial appointment of the post of Senior Research Assistant had continued only for a period of less than 1½ year, inasmuch as on 11.1.1984 he had become Junior Scientist, a teaching post. It would be thus very difficult for this Court to allow the claim of the petitioner only by referring to some stray orders of the University of the year 1994 and 1995, specially when the counsel for the petitioner very fairly submits that for giving petitioner the benefit the provisions of clause 14.1(b) will have to be invoked by firstly absorbing the petitioner on some teaching post in order to give him the benefit of U.G.C. pay scale as prayed in this writ application. It would, therefore, be clear that the prayer made in this writ application is a premature prayer, inasmuch as unless the petitioner is absorbed/ promoted on a teaching post he cannot get the benefit of U.G.C. pay scale. 12 Once this Court has reached to this conclusion there would be no difficulty in distinguishing the law which has been laid down either by the learned Single Judge in the case of Prabhat Kumar (supra) or its affirmance by the Division Bench by the order dated 13.5.1990 wherein all that has been held is that the University is bound to give effect to Clause 14.1(b) of the Statutes requiring filling up the post by way of specified percentage of post by way of promotion/ absorption of suitable qualified candidates already in service of the University. From the above discussions, it would be clear that the presumption of the petitioner that earlier his appointment on the post of Technical Assistant or his present assignment on the post of Junior Research Assistant will automatically give him the benefit of U.G.C. pay scale only because Mr. S.N.Singh and R.P.Sharma were given such benefit way back in the year 1995 or that these posts were equivalent post leading the University to give benefit of U.G.C. pay scale to Mr. S.N.Singh and Mr. 13 R.P.Sharma and also others and denying same to the petitioner in a way would amount to petitioner‟s raising a dispute or his entitlement to which probably he had become entitled in the year 1994-95 when such benefits were given to Mr. S.N.Singh and Mr. R.P.Sharma vide Annexures 18 and 19 to the writ application. If that be so this writ application after the amended Statutes coming into force 2003 will have the effect of taking away any precedential value of the earlier decision taken in case of Mr. S.N.Singh and Mr. R.P.Sharma because it is only after absorption/ promotion that a person can be brought on a teaching post or equivalent post. Thus, this Court would find it difficult to allow the claim of the petitioner for grant of payment of salary in U.G.C. pay scale only on the basis of grant of similar benefit to Mr. S.N.Singh and Mr. R.P.Sharma. The petitioner, however, is continuing on the post of Training Assistant or its equivalent post on 4.4.1986 pursuant to the advertisement dated 28th August, 1985, whereas the appointment of Mr. S.N.Singh and 14 Mr. R.P.Sharma was definitely made either in the year 1982 or even earlier. Therefore, if now a provision has been made under Clause 14.1(b) of the Statutes for considering the cases of Agricultural Inspector, Senior Technical Assistant, Junior Technical Assistant, Demonstrators, Research Assistant like the petitioner holding the qualification for teaching post either by way of their promotion or absorption and a direction has already been given by this Court to consider such cases, the ends of justice would be met if the University is directed to consider the case of the petitioner afresh alongwith others eligible candidates for similar benefit of absorption/ promotion and consequential grant of U.G.C. pay scale. This Court, however, must make it clear that the University vide implemented its Statutes under Clause 14.1(b) as introduced in the year 2003 will not be bound to take precedent case of Mr. S.N.Singh and Mr. R.P.Sharma to be the sole basis for also either absorbing or promoting the petitioner or granting him the U.G.C. pay scale. The 15 petitioner infact must fulfil the test and requirement of clause 14.1(b) of the Statutes and if ultimately the University allows such claim of the petitioner for his absorption/ promotion he would be entitled for the consequential benefit of payment of salary in the U.G.C. pay scale from the date such decision is taken and not for any earlier period. Such exercise, however, in the case of the petitioner must be done by the University within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observations, this application is disposed of. (Mihir Kumar Jha,J.) Patna High Court Dated the 30th August 2010 A.F.R./Surendra