s 1 WP 1078 of 1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1078 of 1999 1. Mumbai Junior College Teachers Union, through its President, Shri Amar J. Singh, having its Office at Pannalal Terrace, Ground Floor, Room No.4, Grant Road, Bombay – 400 007. 2. Sopan Eknath Mane, residing at Juhi, B-6/333, Lokvatika, Kalyan (East), District Thane – 421 306. 3. Shri Appasaheb Piraji Raskar, residing at ML-1 B-85-6, Sector 10, New Mumbai – 400 706. 4. Shri Shrikant Bapurao Talwar, residing at B-6, Ptruvatchalya Hsg. Soc. Dasera Wadi, Saki Naka Near Pipe Line and B.M.C. Garden and Ground, Bombay – 400 072. 5. Shri P.A.Chacko, Residing at 11, Jyoti, Chedda Nagar, Chembur, Mumbai – 400 029. 6. Mrs.Sadhana Deshpande, Aged 57 years, Residing at 237, Trimurti Housing Scy. Sion Trombay Road, Mumbai – 400 022. ..... Petitioners V/s. 1. State of Maharashtra. s 2 WP 1078 of 1999 2. Deputy Director of Education, Mumbai, Jawahar Bal Bhavan, Netaji Subhash Marg, Charni Road, Bombay – 400 004. 3. Director of Education, Government of Maharashtra, having his Office at Opp. Pune Railway Station, Pune – 1. ..... Respondents Mr.Mihir Desai, for the petitioners. None for the respondents. CORAM :P.B.MAJMUDAR & MRS.MRIDULA BHATKAR, JJ. DATE : 22nd NOVEMBER, 2010 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) : - 1. This petition is filed by the President of the Mumbai Junior College Teachers Association on behalf of the Teachers Association alongwith five other individual teachers. It is the case of the petitioners that the pay scale of the members of the petitioner’s Association has been arbitrarily reduced from Rs.2500 - Rs.4000 to Rs.1400 - Rs.2600. It is their case that they are receiving higher pay scale since last five years from filing the petition and they have been arbitrarily reduced in the lower pay scale. 2. The concerned teachers on whose behalf the Association has filed this petition, were appointed as teachers in the subject of Physical Education on the basis of graduate qualification i.e. B.P.Ed. Those teachers s 3 WP 1078 of 1999 were appointed in the concerned colleges. It seems that by a Resolution dated 14th October, 1992, the Government prescribed different pay scales for physical trained teachers. The higher scale was prescribed regarding teachers who are having post graduate degree. The teachers who were having M.P.Ed. (i.e. Post Graduate degree in physical training subject) were placed in the higher pay scales. However, at that time, the concerned colleges fixed the higher pay scales even regarding the graduate teachers and the teachers of the petitioner’s Association, were also given higher pay scale of Rs.2,500 - Rs.4,000 along with the teachers who were having post graduate degree. On 14th December, 1998, the State Government asked the Principals of Colleges regarding the particulars about the concerned teachers who were wrongly given higher pay scales. On 08th October, 1998, the Department passed an order of recovery of excess amount paid to the concerned teachers, who were having qualification of B.Sc. B.Ed., and they were also placed in the lower pay scale of Rs.1,400 - Rs.2,600, instead of pay scale of Rs.2,500 - Rs.4,000, which scale was meant for the teachers who are having Master’s degree. Since the pay scale of the petitioners was reduced and consequential order regarding recovery of the excess amount was also passed, the said decision is challenged by the petitioner’s Association by way of this petition. According to the petitioners, the Government has no power under Section 4 of the M.E.P.S. s 4 WP 1078 of 1999 Act to review its earlier order. 2. During the pendency of this petition, by an ad-interim order, the recovery order is stayed by this Court. 3. Learned counsel Mr.Desai for the petitioners has vehemently submitted that the concerned teachers were rightly given higher scale by the colleges and were rightly placed in scale of Rs.2500- Rs.4000 at the relevant time as they were doing the same duty along with the teachers who are having post graduate degrees. In view of the principle of equal pay for equal work the department should not have discriminated the petitioners and should have given the benefit of the same pay scale which was given to the post graduate Physical Training teachers. It is submitted by Mr.Desai that since the concerned teachers are retired this Court may direct the department to fix their pension and pay the same on the basis of higher pay scale. 4. We have heard the learned counsel for the petitioners and have gone through the annextures and documents accompanied with the petition. It is required to be noted that the Government has prescribed at the relevant time two different pay scales ,one for the teachers whose who are having bachelor degree and higher pay scale was prescribed for the teachers those who are having master degree. It is true that both the sets of teachers are teaching the same subject i.e.Physical Education and s 5 WP 1078 of 1999 perhaps are performing the same duties. The question that requires consideration is, whether on the basis of educational qualification, it is open to the department to prescribe two different pay scales. Now this question is no longer open for any debate in view of the decision of the Supreme Court in the case of Shyam Babu Verma and others Vs.Union of India and others (1994) 2 Supreme Court Cases,521. While dealing with the aspect about the different pay scale on the basis of educational qualification it has been observed by the Supreme Court in paragraph -8 that - “The basis of the claim of the petitioners is that prior to January 1,1973 there was only one scale of Rs.130-240-for Pharmacists who possessed the qualifications mentioned in clauses (a) to (c) of Section 31 as well as those who were covered by clause (d) of Section 31 i.e.who did not possess the qualifications mentioned in clauses (a) to (c) . It is always open to the State Government to put its employees in the same service in different categories for the purpose of the scale of pay according to the qualifications possessed by them. When Section 31 itself conceives of different types of Pharmacists with reference to their academic qualifications and experience,then no fault can be found either with the Third Pay Commission or the respondents inputting the Pharmacists Grade-B in two categories with reference to their qualifications and experience and prescribing two scales of pay. In most of the services the scale of pay is linked with the academic performance, experience and it cannot be held that for one service there should be only one scale of pay ignoring the persons who possess the higher qualifications.” On the point of recovery it has been observed in paragraph 11 s 6 WP 1078 of 1999 that - “ Although we have held that the petitioners were entitled only to the pay scale of Rs.330-480 in terms of the recommendations of the Third Pay Commissionw.e.f.January 1,1973 and only after the period of 10 years , they became entitled to the pay scale of Rs.330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1,1973 , it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.” 5. In view of the aforesaid Supreme Court Judgment now it is clear that different pay scale can be prescribed between two sets of the employees performing the same duties on the basis of educational qualification and if a person holding higher qualification is given higher pay scale ,the action cannot be faulted with on the ground that it offends Articles 14 and 16 of the Constitution as it can be said that there is a reasonable classification and such candidate who is having higher qualification may be given higher pay scale. 6. In view of the aforesaid observations of the Supreme Court, it is not possible for us to accept the submissions of learned counsel Mr.Desai that the petitioners herein were required to be given higher scale alongwith the teachers who are having master degree even though the s 7 WP 1078 of 1999 petitioners are having bachelor degree in Physical Education. Since such classification is held to be reasonable classification we do not find any substance in the petition. 7. So far as recovery is concerned it is required to be noted that for about six years the petitioners were given the benefit of higher pay scale. The petitioners are not instrumental in any manner, nor they have committed fraud for getting higher pay scale’s benefit . Considering the same in our view the order of recovery of amount is not justified at all and the said order of recovery is accordingly set aside. 8. The petition is accordingly partly allowed by restraining the respondents from effecting any recovery/ deducting any amount from the salary of the petitioners towards the recovery of such amount in any manner . 9. The concerned department is directed to fix the pension of the petitioners who have retired, on the basis of pay scale which was applicable at the relevant time when they retired which may include revisional pay scale on the basis of the aforesaid reduced pay scale. s 8 WP 1078 of 1999 10. It is informed to the Court that necessary pension papers have already been sent by the colleges to the State Government. The State Government is directed to fix the pension and other retirement dues of the retired petitioners within a period of two months from today. ( MRS.MRIDULA BHATKAR, J. ) ( P.B.MAJMUDAR, J. )