IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5699 of 2000 Dr. Bal Krishna Singh, son of Sri Hari Narayan Singh, permanent resident of Village Mubarakpur, P.O. Pipria, Dist. Rohtas (Bihar). --------- Petitioner Versus 1. The State of Bihar. 2. Secretary-cum-Commissioner, Department of Health Medical and Family Welfare, Government of Bihar, Patna. 3. Secretary-cum-Commissioner, Department of Finance, Government of Bihar, Patna. 4. Director, Indigenous Medicine, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 5. District Indigenous Medical Officer, Bhagalpur. ------- Respondents ----------- P R E S E N T HON'BLE JUSTICE MIHIR KUMAR JHA ORDER (16.09.2011) Mihir Kumar Jha, J. Heard Mr. Rajendra Narain, learned counsel for the petitioner and Mr. Gautam Bose, learned AAG-8, on behalf of the State. 2. As with regard to the following prayer of the petitioner:- “1(i) Issuance of an appropriate writ including a writ in the nature of writ of mandamus commanding the respondents to forthwith pay salary and its arrears to the petitioner in the pre-revised scale of Rs. 2200-4000 since the petitioner‟s date of appointment as applicable to the Basic Grade to which the petitioner belongs and the corresponding scale of which has been fixed at Rs. 6500/- - 10500/- and the petitioner has been paid the pre-revised scale of Rs. 2200-4000 from March 1999 to September 1999 and the revised scale of Rs. 6500-10500 during October and November 1999 whereafter it has been suddenly stopped and from December 1999 onwards the respondent no.5 has ordered for paying the petitioner‟s salary in the pre-revised scale of 2 Rs. 1500-2750.” Mr. Narain would submit that once the appointment of the petitioner was made on the post of Homeopathic Chikitsak pursuant to the advertisement no. 5/89 prescribing either the degree or diploma in Homeopathic Medical Science to be equivalent for all purposes the Respondents cannot be allowed to discriminate in fixation of pay on the basis of passing such degree or diploma examination. Elaborating this aspect, he would submit that when the petitioner was appointed on the basis of his being a diploma holder in Homeopathic Medicine Science by an order dated 4.12.1987 in the pay- scale of Rs. 850-1360 on the post Homeopathic Chikitsak and was also granted its revised pay-scale of Rs. 2200- 4000 there could be no justifiable reason for the respondents to deny the benefit of subsequent pay revision in the pay scale of Rs. 6500-10500 to the petitioner which has been notified by the State Government for the post of Homeopathic Chikitsak in the resolution dated 8.2.1989 as published in the official gazette on 13.2.1989. 3. Mr. Gautam Bose, learned counsel for the State, on the other hand, would submit that when the Central Council for Indian Medicine being the statutory controlling body for the Homeopathic Medicine, had itself decided to recognize equivalence of diploma and degree holder only up to 1983 session, the petitioner, being a diploma holder of the year 1984, would not be 3 entitled to get the same pay-scale as extended to the diploma holders up to the year 1983. To that extent, he has placed reliance not only on Annexure-A to the counter affidavit containing a notification dated 21.11.1992, but would also rely on an order passed by the State Government on 15.9.1997 pursuant to an order passed by this Court in the case of one Dr. Amreshwar Prasad, also a Homeopathic Chikitsak. 4. In the considered opinion of this Court, while it would be always open for the State to lay down educational qualification as a criteria for fixation of pay but no discrimination can be made in the matter of fixation and payment of pay scale and salary amongst those who have already entered in service on the basis of same qualification for the same post. In this case, when the petitioner had entered in service in the year 1987 on the basis of an advertisement issued in the year 1986 containing the requirement of the post of Homeopathic Chikitsak to be either of a degree holder or diploma holder it did not earmark the year of passing of diploma examination for the fixation of pay. In fact a diploma holder, who had qualified in terms of the advertisement, was entitled to get same pay i.e. Rs. 850-1360 as payable to a degree holder. Eventually, when the said pay-scale was revised with retrospective effect from 1.1.1986 in Rs. 2200-4000 and a classification was sought to be created for diploma holder homeopathic 4 chikitasak by placing them in lower pay-scale of Rs. 1500-2750, this Court did not approve the same and had specially remitted the matter back to the authority to decide this very issue. Pursuant thereto, the State Government by an order dated 15.9.1997 in case of Dr. Amreshwwar Prasad Sinha, who had earlier filed CWJC No. 2950 of 1995, had held as follows:- ^^5½ ekuuh; mPp U;k;ky; ds funsZ'k] iape vlaxfr fujkdj.k lfefr dh vuq'kalk ,oa LokLF; fpfdRlk f'k{kk ,oa ifjokj dy;k.k foHkkx ds ladYi fnukad 21&11&92 ds n`f"fV iFk esa j[krs gq, lE;d fopkjksijkUr jkT; ljdkj us fu.kZ; fy;k gS fd fMxzh/kkjh gksfe;ksiSfFkd fpfdRld@jkT; ljdkj }kjk gksfe;ksiSfFkd fpfdRlk i)fr esa fof/k }kjk LFkkfir fo'o fo|ky; vf/kdk; vFkok cksMZ }kjk o"kZ 1983 rd iznRr prqFkZoxhZ; ¼ Mh-,p-,e-,l½ fMIyksek bu gksfe;ksiSfFkd esMhlhu ,oa ltZjh izek.k i= ¼;ksX;rk½ /kkjd gksfe;ksiSfFkd fpfdRldksa ds fy, :- 1500&2750 ds LFkku ij :0 2200&4000 dk osrueku Lohd`r fd;k tk,A** 5. A question, therefore, would arise that if the petitioner also was given the benefit of the same pay- scale of Rs. 2200-4000, could he be subsequently relegated to the pay-scale of Rs. 1500-2750 after ten years in the name of pay revision exercise undertaken in the year 1999 w.e.f. 1.1.1996. 6. As noted above, the petitioner had entered in Government service by openly declaring that he was only a diploma holder and yet he was appointed at par with the degree holder vide his appointment letter contained in Annexure-4/A dated 4.12.1987. It was this pay-scale of Rs. 850-1360 which was subsequently revised to 2200- 4000 and, therefore, if subsequently the C.C.I.M. in the year 1990 had taken a decision for treating the diploma holder only up to the year 1983 to be equivalent to the 5 qualification of degree in Homeopathic, that by no way could have also changed the criteria of appointment and pay-scale already granted to the persons including the petitioner who had already been appointed in service in 1987. It has to be noted that even in the subsequent pay revision notification dated 8.2.1999 notified on 13.2.1999, Homeopathic Chikitsak (diploma) having the pay-scale of Rs. 2200-4000 by way of replacement earlier pay-scale of Rs. 850-1360 have been given the pay-scale of Rs. 6500-10500. It is also not in doubt that the petitioner is also a homeopathic doctor in the field of Homeopathy and, therefore, he too was entitled for revision of pay-scale of Rs. 2200-4000 and Rs. 6500- 10500. 7. The submission of Mr. Bose as with regard to the effect of equivalence of qualification made by C.C.I.M. and the consequential notification issued by the State Government on 21.11.1992 could also not adversely affect the petitioner appointed in 1987 and could be made applicable to any new entrant in service appointed on the post of Homeopathic Chikitsak on the basis of his diploma qualification on or after 21.11.1992 by making such classification based on year of passing for such diploma examination before 1983 or thereafter may be made basis for granting different pay- scale. The petitioner infact was already being paid his salary in the revised pay-scale of Rs. 2200-4000 alike a 6 degree holder Homeopathic Chikitsak and also got the benefit of revised pay-scale of Rs. 6500-10500 for two months and therefore, he could not have subjected to reduction of his pay scale on the strength of notification of the Health Department dated 21.11.1992 (Annexure-A). 8. Reference in this connection may be made to the judgment of the Apex Court in the case of P.K. Ramachandra Iyer & Ors. Vs. Union of India & Ors. reported in AIR 1984 SC 541. In that case, the Professors of Indian Veterinary Research Institute working since earlier were sought to be placed in lower pay-scale in comparison to the new recruits on the basis of some cosmetic change in the qualification and in that context, the Apex Court had held as follows:- “17. ------- It is contended that that the newly created post in the cadre of Professor is not the same as the then existing post and that thee was a marginal revision in the qualifications for the posts of Professor in the revised scale and that petitioners were not discriminated because they were given an opportunity to contest for the posts in the revised scale. The justification is too flimsy to merit any serious consideration, more so in view of the fact that it is difficult to envisage a situation in such institutes, undertaking advance research in Agriculture and Animal Husbandry where persons holding Doctorate qualification and enjoying the status of the post of Professor would be governed by two different scales even though the duties, responsibilities and functions in various 7 sister disciplines are identical. In such a situation Art. 39 (d), must assist us in reaching a fair and just conclusion. Elaborating the underlying intendment of Article 39(d), Chinnappa Reddy, J. in Randhir Singh v. Union of India, (1982) 1 SCC 618: (AIR 1982 SC 879), observed that construing Arts. 14 and 16 in the light of the Preamble and Art. 39(d), the Court was of the view that the principle „equal pay for equal work‟ is deducible from those Articles and may be properly applied to the cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. The case in hand is a glaring example of discriminatory treatment accorded to old experienced and highly qualified hands with an evil eye and unequal hand and the guarantee of equality in all its pervasive character must enable this Court to remove discrimination and to restore fair play in action. No attempt was made to sustain the scales of pay for the post of Professor on the doctrine of classification because the classification of existing incumbents as being distinct and separate from newly recruited hand with flimsy change in essential qualification would be wholly irrational and arbitrary. The case of the petitioners for being put in the revised scale of Rs.1100-1600 from the date on which newly created posts of Professors in sister disciplines in IVRI and other institutes were created and filled in in revised scale is unanswerable and must be conceded.” (underlining for emphasis) 9. A similar view was also recorded by the Apex Court in the case of P. Savita & Ors. Vs. Union of 8 India, Ministry of Defence (Department of Defence Production), New Delhi & Ors. reported in AIR 1985 SC 1124 ~ 1985 (Suppl.) SCC 94 wherein it was held that the Senior Draughtsmen in the Ministry of Defence (Department of Defence Production, doing same work and discharging same function could not be classified into two categories based on seniority cum fitness and such classification could not be justified. 10. Yet again in the case of State of Mysore Vs. B. Basavalingappa reported in 1987 SC 411 wherein also a person working as a Workshop Instructor in an Engineering College, being a certificate holder and not diploma holder, despite there being one scale of pay for both certificate holder and diploma holder at the time of his initial appointment, was placed in a lower pay- scale in comparison to the Instructor holding diploma who were placed in the higher pay-scale had held that at the time of initial appointments there was only one cadre and that was of Instructor and only one pay scale and the certificate holder or a diploma holder both wee entitled to be recruited on that post. The Apex Court in that regard had clarified that there was no substantial difference at that time between the two qualifications although they were described differently and that a diploma was a higher qualification, and as such the decision for revised different pay scale on the basis that the diploma became a better qualification than the 9 certificate could not be justified inasmuch as the instructor already appointed on the basis of diploma or certificate course was to perform same duties and same work irrespective of the fact that he was a certificate holder or a diploma holder. Consequently the Apex Court had held that different pay scales could not be enforced for the same post merely on the basis of a holder of a qualification of certificate course or a diploma Course. 11. Thus when in the present case also when it becomes clear that both the degree holder and diploma holder including the petitioner were appointed on the same post of Homeopathic Chikitsak under the common advertisement and with the same pay-scale they cannot be treated differently by reference to the consideration that they were holding different qualification at the time of their appointment. Their genetic blemishes disappeared when they were appointed on a common class and the same could not be revived so as to make equals unequal. Reference in this connection may also be usefully made to the judgment of the Apex Court in the case of Roshan Lal Tandon Vs. Union of India & Ors. reported in AIR 1967 SC 1889. 12. This Court, however, would immediately clarify that it will be always open for the State and/or the appointing authority to lay a classification on the basis of educational qualification and also to frame rules for promotion on such classification as was held 10 in the judgment of the Constitution Bench of the Apex Court in the case of The State of Jammu & Kashmir Vs. Shri Triloki Nath Khosa & Ors. reported in 1974(1)SCC 19 which after approving the judgment of the Apex Court in the case of State of The State of Mysore & Anr. Vs. P. Narasinga Rao reported in AIR 1968 SC 349, had held that Article 14 & 16 do not exclude the lying down of norms of selection test nor could preclude the Government from laying down classification for post in question. 13. The question, however as in the present case would still be that of a person having been appointed on the same post of Homeopathic Chikitsak on the basis of a diploma qualification alike the degree holder and in the same pay-scale, could be subsequently subjected to a lower pay-scale only because of his having diploma qualification ? As noted above, the only basis for the respondents in placing the petitioner, a diploma holder, in the lower pay-scale is the norms laid down by the C.C.I.M. in the year 1990 stating that diploma holder of the year 1983 and earlier will only be treated to be at par with the degree holders and thereafter from 1984 onwards the diploma holders would not be having the parity in the matter of pay-scale with the degree holders even when they would be working on the same post of Homeopathic Chikitsak. As clarified above, while the State and/or the appointing authority will always have the liberty to make a new 11 classification by creating two groups with two different pay-scales on the basis of qualification, those who have already been recruited prior to change in such rules cannot be made to suffer in the grant of same pay-scale for the same post as they would amount to creating a class among class and taking away the vested rights with retrospective effect. 14. Based on these considerations, this Court would find no rationale in downgrading the petitioner to a lower pay-scale of Rs. 1500-2750 by way of replacement pay-scale of Rs.850-1360 or denying him the revised pay- scale of Rs. 2200-4000 and/or Rs. 6500-10500 of the post of Homeopathic chikista. 15. This writ application is accordingly allowed and the Respondents are directed to make payment of salary and allowances of the petitioner in the revised pay scale of Rs. 6500-10500 w.e.f. 1.1.1996. The necessary pay fixation and consequential payment of arrear and current salary would also be made to the petitioner in a period of six months from the date of receipt/production of the copy of this order. 16. There would be, however, no order as to costs. Patna High Court Dated the 16th September 2011 A.F.R./Rsh (Mihir Kumar Jha, J.)