HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case Special Appeal No. 106 of 2004 G.B. Pant University of Agriculture & Technology Vs. Vikram Prasad & others Approved for reporting. Not Approved for reporting Date of Decision: 13.09.2006. Initial of Judges: ……………… ………………… ………………. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Special Appeal No. 106 of 2004 G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar, Through Vice Chancellor. ………. Appellant Versus 1. Vikram Prasad S/o Sri Chandrika Prasad, Technical Assistant, Plant Pathology (Potato) Department, Agriculture College, G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar. 2. Rakesh Singh S/o Sri Leela Singh, Technical Assistant, Department of Breeder, Seed Production, G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar. 3. Chotte Lal S/o Sri Damodar Sharma, Technical Assistant, AICRP on Soyabeen Project, Department of Soil Science, Agriculture College, G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar. 4. Narendra Singh S/o Sri Tara Singh Technical Assistant, AICRP on Oil Seed Project, Department of Plant Pathology, Agriculture College, G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar. 5. Ram Babu Sachan S/o Sri Ram Swaroop Singh, Technical Assistant, AICRP on Soyabeen Project Department of Plant Pathology, Agriculture College, G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar. 6. Anil Kumar Singh S/o Sri Abhay Singh, Technical Assistant, National Fellow Science, Agriculture College, G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar. 7. A.K. Tyagi S/o Sri K.N. Singh Tyagi, Technical Assistant, University General Budget Project, G.B. Pant University of Agriculture & Technology, Pant Nagar, District Udham Singh Nagar. ………… Respondents Mr. Rajendra Dobhal and Mr. Manoj Shah, Advocates for the appellant. Mr. S.N. Babulkar. Senior Counsel with Mr. Yogesh Pacholiya, Advocate for the respondents. JUDGMENT Coram: Hon. Rajeev Gupta, C.J. Hon. Rajesh Tandon, J. Dated: 13th September, 2006 RAJESH TANDON, J. By the present Special Appeal, the appellant has challenged the judgment dated 06.08.2004 passed in Writ Petition No. 54 of 2000 (S/S) as well as the order dated 15.09.2004 passed in Review Petition No. 5183 of 2004. 2. Brief stated, a writ petition [W.P. No. 54 of 2004 (S/S)] was filed by the petitioners (respondents herein) praying for a direction in the nature of mandamus directing the respondents to pay the sanctioned scale of salary (1640-2900) to the petitioners w.e.f. 22.07.1995 i.e. the date of absorption along with arrears and interest. Further prayer was made in the writ petition for a writ of mandamus directing the respondents to confer the future benefits to the petitioners accruing on the scale of Rs. 1600-2900. 3. The facts giving rise to the writ petition were that the University known as G.B. Pant Krishi Evam Prodyogik Vishwavidyalaya was created under the U.P. Krishi Evam Prodyogik Vishwavidyalaya Adhiniyam 1958. Various agricultural research projects namely All India Coordinate Research Projects (AICRP) on Potato, Wheat, Sugarcane etc. sponsored and financed by the Central Government through Indian Coucil of Agriculture and Research, Krishi Bhawan, New Delhi (ICAR), were being run by the University. In the aforesaid projects, various Research Associates were functioning. The petitioners (respondents herein) were working as Technical Assistants in the projects namely AICRP Pathology (Potato), Breeder Seed Production, AICRP Soyabeen (Soil Science), AICRP Oil Seed (Pathology), AICRP Soyabeen (Pathology), NFP Animal Science and University General Budget (Veterinary). 4. The aforesaid University, pursuant to the State Government’s decision, absorbed the petitioners in W.P. No. 54 of 2000 (S/S) (respondents herein) on the post of Technical Assitants w.e.f. 22.07.1995. While absorbing the respondents on the post of Technical Assistants, on 01.02.1996, an Office Order was issued from the G.B. Pant University of Agriculture and Technology, Pant Nagar, wherein it was clearly mentioned that the Research / Teaching / Extension Associates are hereby absorbed on the post of Technical Assistants / Senior Technical Assistants as indicated against each. The Officer Order dated 01.02.1996 reads as under: “OFFICE ORDER In continuation of Officer Order No. PMB/Estt. Dated Jan. 19, 1996, the following Research / Teaching / Extension Associates are hereby absorbed on the post of Technical Assistant / Senior Technical Assistant as indicated against each: A. Senior Technical Assistant (Pay scale Rs. 1640- 2900) S. Name of RA/TA/EA Name of Project Basic Pay No. 1. Dr. (Mrs.) Rekha AICRP on Rs. 1640.00 Purohit Agroforestry 2. Sri. H.R. Jaiswal ” Vegatable ” 3. Smt Neeta Gaur ” Wheat ” 4. Sri. T.V. Singh ” Wheat ” 5. Mr. Kanak Saxena ” Wheat ” 6. Sri Tej Pratap ” Wheat ” 7. Sri. D.C. Bashketi ” Sorghum ” Improvement 8. Sri P.K. Pandey ” Sorghum ” Improvement 9. Sri S.K. Jain ” Vegetable ” B. Technical Assitant (Pay scale Rs. 1400-2600) 1. Sri S.C. Sengar AICRP on Potato Rs. 1400.00 2. Sri I.P. Singh ” Wheat ” 3. Sri K.A. Khan ” Sugarcane ” 4. Sri A.K. Singh ” Soyabean ” 5. Sri Vikram Prasad ” Potato ” 6. Sri Raj Kumar ” Soyabean ” 7. Sri Rakesh Singh ” Breeder Seed ” Production 8. Sri Chhotey Lal ” Soyabean ” 9. Sri R.A. Khan ” Oil Seed ” 10. Sri Susheel Kumar ” Soyabean ” 11. Sri Anil Kumar Singh National Fellow ” (Animal Science) Project 12. Sri Narendra Singh AIRCP on Oil Seed ” The concerned TA/RAS are advised to submit their documents and medical fitness certificate from University Medical Officer I/C, in the PM(A) Section. These orders shall be operative w.e.f. 22.7.95. The terms and conditions of services of these TAS/STAS shall be governed as per university rules.” 5. The names of the petitioners were mentioned on the pay scale of Rs. 1400-2600 under Clause B as Technical Assistants. Subsequently, another Office order was issued on 15.07.1996 showing the absorption of Senior Technical Assistants on the pay scale of Rs. 1640-2900. The said Officer Order also shows the bifurcation of Senior Technical Assistants and Technical Assistants. The said Office Order dated 15.07.1996 is also quoted below: “OFFICE ORDER In pursuance of decision taken by the Board of Management in its meeting held on 22.7.95 and on 14/15.12.1995 and the orders of the Vice Chancellor, the following Research / Teaching / Extension Associates are here offered letter of absorption on the post of Technical Assistant / Senior Technical Assistant as indicated against each: A. Senior Technical Assistant (Pay scale Rs. 1640-60- 2600-EB-75-2900) S.No. Name of RA/TA/EA S/Sri Name of Project 1. Haseen Ahmed Agrometeorology Ranichauri 2. Dal Chand Agriculture College (General Budget) against Investigator 3. Himanshu Garg AICRP on PHT against STA 4. Raza Jaywanth Apple Scabe Project, Ranichauri B. Technical Assistant (Pay scale Rs. 1400-40-1600- 50-2300-EB-60-2600) 1. R.B. Sachan AICRP on Soyabean 2. Ajit Kumar AICRP on Sugarcane 3. Mrs. Renu Singh AICRP on Seed Technology 4. Mohd. Fareed Optimization of Ground water 5. Smt. Suman Sharma College of Home Science 6. A.K. Tyagi College of Vety. Science 7. Shiv Ji Singh AICRP on Forage Crops 8. Vijendra Singh Agronomic Research 9. O.P. Ojha AICRP on Oil Seeds 10. Yesh Pal AICRP on Oil Seeds 11. K.V. Singh AICRP on Wheat The concerned TA/RA/EAs are advised to submit their documents and medical fitness certificate from University Medical Officer Incharge in the Personnel Management Section (A) only after which formal letter of absorption will be issued.” 6. A counter affidavit has been filed by the University in the writ petition and in paragraph IV thereof, if has been stated that the University, in order to help these Research / Extension Associates formulated a scheme for their absorption on regular pay scales. The Board of Management of the University approved a procedure for absorption of Research / Extension Associates depending upon their qualification, seniority, availability of posts and reservation in the two cadres. The said paragraph IV of the counter affidavit it is quoted below: “IV. That the University in order to help these Research/Extension Associates formulated a scheme for their absorption on regular pay scales. The Board of Management of the University approved a procedure for absorption of Research/Extension Associates etc. depending upon their qualifications, seniority, availability of posts and reservation rosters in tow cadres. i) Technical Assistant, Pay Scale Rs. 1400- 2600. ii) Senior Tech. Assistant, Pay Scale Rs. 1640-2900 . A copy of procedure laid down by the Board is at Annexure CA- I. The absorption of the petitioners on the post to Technical Assistant in the pay scale of Rs. 1400-2600 has been done strictly as per the approved procedure as they have only Bachelors Degree qualification and for the post iii) STA (1640-2900) the qualification is Master’s Degree Hence there being no force in writ it is liable to be dismissed.” 7. Similar statement has been made in paragraph 10 of the counter affidavit mentioning the scale of pay sanctioned by the Board of Management in two different cadres. Paragraph 10 of the counter affidavit reads as under. “10. That the contents of the para no. 7 of the writ petition are partly admitted. It may however be pointed out that irrespective of the nomenclature and or scale of pay sanctioned in the project the Board of Management has approved two different pay scale for two different cadre viz. Technical Assistant Rs. 1400-2600 Sr. Tech. Assistant Rs. 1640-2900 The qualification for absorption on these posts is also different. While for absorption on the post of T.A. the qualification is Bachelor’s Degree, for absorption as S.T.A. it is Master’s Degree. Besides this the imcumbent should have Master’s Degree in the field of specialization and also must meet the requirement of seniority. Therefore, the contention that the post in the project was sanctioned in a higher scale in immaterial.” 8. Along with the counter affidavit, the University has filed the resolution of Board of Management as CA-1, by which, the policy of absorption was decided by the Board of Management. The relevant portions are quoted below: ladYi la0%& iaruxj d`f"k fo”o fon~;ky; ds fofHkUu ladk;ksa esa dk;Zjr izlkj@f”k{k.k lg;ksfx;ksa dks rduhdh lgk;dksa@ofj"B rduhdh lgk;dksa ds inksa ij lek;kstu ds lEcU/k esaA mDr izLrko ij fopkj foe”kZ fd;k x;kA fopkjksijkar izcU/k }kjk ikfjr fd;k x;k fd izcU/k ifj"kn dk ekuuh; lnL; Mk0 ¼Jherh½ bfUnzjk ân;s”k dh v/k;{rk esa ikfjr lfefr dh laLrqfr;ksa dks Lohdkj djrs gq, rduhdh lgk;d osrueku :0 1400&2600 ,oa ofj"B rduhdh lgk;d osrueku :0 1640&2900 ds inksa dh miyC/krk ds vk/kkj ij 'kklu ds vkj{k.k lEcU/kh fu;eksa dks ikyu djrs gq, 'kks/k@izlkj@f”k{k.k lg;ksfx;ksa dks rduhdh lgk;d@ofj"B rduhdh lgk;d ds fjDr inksa ij lek;ksftr dj fn;k tk;sA ---------------------------------------- 2- orZeku esa rduhdh lgk;d rFkk ofj"B rduhdh lgk;dksa ds o"kZ osrueku esa] ftlls mRiUu dfBukb;ksa ds fujkdj.k gsrq lfefr fuEuor osrueku fu/kkZj.k fd;s tkus gsrq laLrqfr djrh gS%& 1- ofj"B rduhdh lgk;d 1640&60&2600&n0jks0&75&2900 2- rduhdh lgk;d 1400&40&1600&50&2300&n0jks0&60& 2600 3- ;fn fdlh fjDr ofj’B rduhdh lgk;d ds in gsrq ofj’B ,e0,l0lh0 fMxzh/kkjd “kks/k@izlkj@f’k{k.k lg;ksxh visf{kr fo’k; fo’ks”kKrk ds vuqlkj vko”;drk iwjh ugh djrk gS rks mls Lukrd fMxzh dh ;ksX;rk ds vk/kkj ij rduhdh lgk;d dk inuke ,oa osrueku fn;k tk ldrk gS] ftlds fy, mls fyf[kr :Ik esa viuh lgefr nsuh gksxhA 9. The matter came up for hearing before the learned Single Judge. The learned Single Judge has relied upon the letter dated 21.03.1994 issued by Indian Counsel of Agriculture Research, Krishi Bhawan, New Delhi to all the Agriculture Universities including the present University regarding the sanction of budget for the five year plan (1992-1997) and the pay scale of Technical Assistants has been shown as Rs. 1640-2900. Further reliance has been placed on the letter dated 06.04.2000 from Government of India, Department of Agriculture, Krishi Bhawan, New Delhi by which rs. 2687.767/- lacs have been allocated as ICAR share for research programme and in this letter also the pay scale of Technical Assistants has been shown to be Rs. 1640-2900, these letters have been issued from the Department of Agriculture, Research and Education as ICAR. 10. The learned Single Judge has allowed the writ petition vide judgment dated 6.8.2004 and held that the petitioners are entitled to the pay scale of Rs. 1640-2900 (unrevised). Thereafter the respondents have also filed a Review Petition bearing No. 5183 of 2004, which was also rejected by the learned Single Judge vide order dated 15.9.2004. 11. Of course, the grade of Technical Assistants has been shown as Rs. 1640-2900 for which the reliance has been placed by the learned Single Judge. At the same time, in a letter dated 13.11.1995 a reply has been given wherein it has been clarified that so far as Technical Assistants and Senior Technical Assistants are concerned, there are no sanctioned posts according to the budget. The said reply is quoted below: “lLFkkiukf/kdkjh d`I;k vius i=kad la[;k@1129] fnukad vDVwcj 28]29 dk lUnHkZ ysus dk d’V djsa ftlds }kjk rduhdh lgk;d@ofj’B rduhdh lgk;d ds inksa ij “kks/k@f'k{k.k@izlkj lg;ksfx;ksa ds lek;kstu ls lEcfU/kr lwpuk ekaxh xbZ gSA okfNr lwpuk fu/kkZfjr izi= esa lwpukFkZ ,ao vko';d dk;Zokgh gsrq izsf’kr gSA funs”kky; ds lkekU; vk;&O;;d esa rduhdh lgk;d@ ofj’B rduhdh lgk;d dk ctV ds vuqlkj dksbZ in Lohd`r ugha gSA vr% bl lEcU/k esa lwpuk “kwU; le>h tk;sA bu funs”kky; ds lkekU; vk;&O;;d esa ctV ds vuqlkj vuqla/kku lgk;d ifjofrZr dfu’B “kks/k vf/kdkjh osrueku :0 2000&4000 ds 21 in fjDr gSA” 12. Since in the aforesaid letter it was clearly mentioned by the Director Research that there are no sanctioned posts according to the budget for the posts of the Technical Assistants and Senior Technical Assistants, the University by Office Order dated 1.02.1996 has made a policy for absorption on the post of Technical Assistants and Senior Technical Assistants on the pay scale of Rs, 1400-2600 and Rs. 1640-2900 respectively. 13. In view of the aforesaid policy decision taken by the University, the view taken by the learned Single Judge cannot be said to be correct. We are of the opinion that the learned Single Judge has wrongly interpreted the letters of the ICAR and has completely ignored the policy decision taken by the University by which two cadres were created and by creating two cadre, the respondent has opted for the absorption of the petitioners in accordance with clause 3 by which the qualification of post graduation was prescribed for Senior Technical Assistants and Graduation was prescribed for Technical Assistants and the pay scale of Rs. 1640-2900 was prescribed for Senior Technical Assistants and Rs. 1400-2600 was prescribed for Technical Assistants. 14. Reliance has been placed on the judgment in the case of M.P. Rural Agriculture Extension Officers Association Vs. State of M.P. and another reported in AIR 2004 SC 2020 on the principle of equal pay for equal work, wherein the Apex Court has died held in paragraph 18 as under: “18. The principle was reiterated in V. Markendeya (supra) observing: 13. In view of the above discussion we are of the opinion that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualification, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution, and the Court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the Court must consider and analysis the rational behind the State action in prescribing two different scale of pay. If on an analysis of the relevant rules, orders nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the Court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld. principle of equal pay for equal work is applicable among equals, the cannot be applied to unequals.” 15. In the case of M.P. Rural Agriculture Extension Officers Association Vs. State of M.P. and another (supra), reliance was placed on the judgment of AIR 1993 SC 286. The Apex Court has held in paragraphs 24 of 25 as under: “24. In Pramod Bhartiya (supra), Jeevan Reddy, J. categorically held that burden to prove that a discrimination has been committed is upon the petitioners failed to discharge their burden. 25. Yet again in Shyam Babu Verma (supra) N.P. Singh, J. speaking for a three-Judge Bench observed: “………The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ‘equal pay for equal work’ should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ‘equal pay for equal work’ to them…………” 16. The question of equal pay for equal work had again came up for interpretation in the case of U.P. State Sugar Corporation Ltd. and another Vs. Sant Raj Singh and others reported in 2006 AIR SCW 3013, wherein the Apex Court, relying upon various judgments, has held in paragraphs 21, 22, 23, 24, 28 and 29 as under: “21. Yet again in Shyam Babu Verma and others v. Union of India and others [(1994) 2 SCC 521)] a 3-Judge Bench of this Court opined: “………..The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ‘equal pay for equal work’ should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ‘equal pay for equal work’ to them.” 22. In Government of W.B. vs. Tarun K. Roy [(2004) 1 SCC 347], it was clearly laid down that the holders of a higher qualification can be treated to be a separate class, holding: “20. Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equally clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia….” 23. The said decision has been noticed by another Bench of this Court in M.P. Road Agriculture Extension Officers Association v. State of M.P. and another [(2004) 4 SCC 646] stating: “22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant to pay has been upheld by the Constitution Bench of this Court in P. Narasinga Rao.” 24. The First Respondent admittedly did not possess the requisite qualification. He merely claimed a higher scale of pay only because Sri. B.P. Srivastava and Sri Shyam Sunder Shukla had been paid. It has not been disputed before us that the case of Sri Srivastava stood on different footing and his scale of pay had to be protected in terms of Section 16 of the Act. So far as Sri Shyam Sunder Shukla is concerned, he may proceed on the basis that the corporation took a wrong decision. The said decision however was not questioned by the first respondent before the High Court. No foundational facts had been placed before the High Court in relation thereto. We would not like to enter into the controversy as to whether his case could have been considered by the Committee or on what basis the Committee considered the cases of 7 candidates and granted higher scales of pay to 4 candidates as the validity thereof is not in question. Assuming that the Corporation was wrong, the same by itself would not clothe the First Respondent even legal right to claim a higher scale of pay. On what basis the Selection Committee selected four employees out of the seven is not known. Three persons admittedly were not selected. If the plea put forward by the respondent is accepted, these employees also would be entitled to the same scale of pay as given to the said Sri Shukla, although they have been found to be not fit therefor. Educational qualification was made the basis for a valid classification in the matter of payment of salary in a particular scale of pay by the Wage Board itself. Only in the year 1989, such a classification was obliterated. The First Respondent had been granted the benefit of the recommendations of the Third Wage Board also. It was a matter of policy decision for the Corporation to consider as to whether a particular category of employees should be taken outside the purview of pay scales recommended by the Wage Board and place them in a higher scale of pay. We, therefore, cannot accept the contention of Sri Dwivedi that only because no such qualification was prescribed at the time of recruitment, the classification made on that basis would be bad in law. Even otherwise, the said contention is not correct as scale of pay was determined by the award of the Wage Board. 28. Yet again in Union of India and another Vs. International Trading Co. and another [(2003) 5 SCC 437], this Court Opined: “……….. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is not discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short “the Constitution”) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a part. Even if hypothetically it is accepted that the wrong has been committed in come other cases by introducing a concept of negative equality the respondents cannot strengthen their case………..” 29. Moreover, Article 14 has a positive concept. No body can claim equality in illegality.” 17. Apart from the aforesaid, in the case of U.P. State Cement Corporation and others Vs. B.K. Tiwari reported in (1998) 1 UPLBEC 265, the Apex Court has observed in paragraphs 5 and 6 as under: “5. The respondent accepted the offer given to him by the aforesaid appointment letter and accepted the post of the Manager (P&IR). He joined this post on Feburary 28, 1987 and on April 24, 1987 represented to the appellant that he was entitled to placement in the revised grade of Rs. 1800-2250/- which according to him was applicable to Manager (P&IR) Headquarters. This representation was rejected and this led to filing of the writ petition by the respondent in the High Court which was allowed as aforesaid. 6. We do not think there is much controversy involved in the present case. The respondent said that at the time when he had applied for the post of Manager (E-4) it was in the pay scale of Rs. 1500-2000/- and what was offered to him was the post of Deputy Manager in the pay Scale of Rs. 1400-1800/-. Thus, according to the respondent when he was offered the post of Manager the pay scale had already been revised to Rs. 1800-2250/- to which, he said, he was entitled to. We don’t think this contention of the respondent can be accepted. Letter offering him the appointment of Manager is specific. This letter as noted above, was written after the revision of pay