NATIONAL FEDERATION OF STATE NFC (PHYSICAL A

EDUCATION} TEACHERS' ASSOCIATION AND ORS.

UNION OF INDIA

NOVEMBER 16, 1992 B

[M.H. KANIA, CJ. AND S. MOHAN, J.]

Constitution of India, 1950: Article 14--National Fitness Corps-Junior Grade I Physical Training Teachers initially appointed by Central Government transferred to various State Govemments-Scale of pay equivalent to that of C primary teachers of Central School grante~Educational qualification, nature of duty and responsibilities different from those prescribed for Secondary School Physical Instmctors-Whether entitled to scale of Secondary Sc/tool Physical Instmctors.

D Equal pay for equal work-Principle of-Whether applicable where qualifications, nature of duties and responsibilities are different.

The Petitioner-Federation, representing Physical Education Teachers working in various schools other than primary schools in the country, filed a writ petition before this Court contending that the N.F.C. E Instructors, previously known as N.D.S. Instructor Junior Grade i, were given, by mistake, those pay scales which were applicable to teachers in primary schools, instead of the pay scale of secondary school teacher and that though there were subsequent revisions, the pay scale applicable to a secondary teacher was denied, that since the petitioners were not working F in primary schools, they could not be fixed on the pay scale as applieable to primary school teachers, and that they would be entitled to the scale t f pay as applicable to secondary school teachers and the revision thereof, that while the Kendriya Vidyalaya teachers had been fixed on the pay scale of Rs.330-560 for primary teachers, there was no justification whatever to G treat the teachers of the petitioner-Federation as elonging to the grade of primary school teachers when, in fact, none of the teachers belonging tc~ the petitioner-Federation was working in primary school, and, therefore it was clear case of a denial of equal pay for equal work.

In the counter-affidavit filed on behalf of the Union of India, it was H

SUPREMECOURTREPORTS [1992) SUPP. 3 S.C.R.

A submitted. that the scale of pay given to the petitioners was on the basis of their qualification and as per their recruitment rules, that the relevance of Kendriya Vidyalayas' pay scales was due to the fact that they had the pay scale of Rs.330-560 for their primary teachers in their pay structure and these were cited as example of pay fixation as done by Kendriya B Vidyalayas, and it was a mere coincidence that the revised scale of Junior Grade I Instructors was equivalent to that of primary teachers of Kendriya Vidyalayas; that since they were not having the essential qualifications for

Cntral Schools PETs, they could not be given their scales irrespective of the fact that they were doing duties of physical education teachers, that c the category of Senior Grade II N.D.S. Instructors had been given those scales on the basis of their qualifications and experience and the equivalence of scales was a mere coincidence as the cadre of service of N.D.S. Instructors was a separate one under the National Discipline Scheme/ National Fitness Corps Organ_isation and therefore, there was no violation of the principle of equal pay for equal work. It was also contended D that it was incorrect on the part of the petitioners to say that there were two grades, one for primary school teacher and another for secondary school teacher; and that the work was equal; the grades were based on qualifications, and the responsibilities were entirely different, and hence the principle of equal pay for equal work could not apply to the instant E case; in short, where gradation was based purely on the qualification, the petitioners could not have a valid complaint.

Dismissing the Writ Petition, this Court,

F HELD: 1. 5 non-gazetted categories of N.D.S. employees namely, (1) Supervisor, (2) N.D.S. Instructor Senior Grade I, (3) N.D.S. Instructor Senior Grade II, (4) N.D.S. Instructor Junior Grade I and, (5) N.D.S.

InstructOr Junior Grade II which later on came to be merged with Junior Grade I with effect from 1.3.71, came to be fixed on different pay scales.

G Such fixation of pay scale was based on the respective qualifications and experience as per the Recruitment Rules. Therefore, the principle of equal pay for equal work would not apply to the instant case. [9-F-G]

Mewa Ram Kanojia v.All India Institute of Medical Sciences and Ors., H (1989] 1 S.C.R. 957, relied on.

TEACHERS' ASSCN. v. U.O.I. 3

2.1. There are no different scales one for primary school teacher and A another for secondary school teacher. Therefore, the assumption of the petitioners that they have been fixed on the pay scale of primary school teachers is not correct. The N.D.S. Instructors, Junior Grade I were recruited for a specific purpose. Their pay scale of Rs.110-200, was deliberately fixed. There was no mistake about it. That is evident from B G.S.R .. 336 dated 24th February, 1961 issued by Ministry of Education, Government of India. The N.D.S. Instructors did not have desirable _qualification of diploma from a recongnised Physical Training Institute as listed out in the Schedule to the said G.S.R. Therefore, notwithstanding the fact that they were assigned the job of Physical Education Teacher, the petitioners could not be given the pay scale of Physical Education Teacher of Central Schools. The Third Pay Commission also did not recommend the revised pay scales for two reasons; (1) they were either temporary or quasi-permanent or (2) were in the process of transfer to the State service.

Therefore, there is no mistake in fixing the scale of pay. [9-C-FJ

2.2. Merely because Item 8 of the statement attached to the Onice Memorandum dated 30th September 1975 dealing with the revision of pay scales of Principal and teachers of Kendriya Vidyalaya Sangathan, talks of primary teacner it does not mean primary school grade. The relevance is that the pay scale of primary teachers of Kendriya Vidyalaya is Rs.330- 560 in their pay structure. This was cited as an example to the States for pay fixation. It was a mere coincidence that the revised pay scale of Junior Grade I Instructors was equivalent to that of primary teachers of Kendriya Vidyalaya Sangathan. They did not have the essential qualification to be taken in service in Central Schools as Physical Education Teachers. They could not be given their pay scales regardless of the fact that they were doing the duties of physical Education Teachers. Therefore, wl1ere the responsibilities are different and the nature of work is also different it cannot be held that the petitioners will be entitled to the scale of pay as is applicable to secondary school teachers. [10-F, G; 11-D]

State of U.P. and Ors. v. J.P. Chpurasia and Ors., [1980] 1 S.C.C. 121, relied on.

Union of India & Anr. v. R.G. Kashikar and Am:, A.l.R. 1986 S.C. 431, referred to.

ORIGINAL JURISDICTION : Writ Petition (C.) No.861 of 1990.

(Under Article 32 of the Constitution of India).

M.K. Ramamurthy and V.J. Francis for the Petitioners.

V.C. Mahajan and B. Parthasarathi for the Respondent.

The Judgment of the Court was delivered by

MOHAN, J. The writ petition under Article 32 of the Constitution of India has been preferred by the National Federation of State NFC (Physical Education) Teachers' Associations. '

Petitioner No.l (Federation) has a membership of 7,000 Physical Education Teachers working in the. various schools other than primary schools in the country.

A scheme known as 'National Discipline Scheme' (for short NOS) D was started in 1954 for inculcating discipline and imparting training in mass

drill among the younger generation in the refugee camps and colonies. In 1958 the scheme was transferred to the Ministry of Education and was enlarged to cover a number of high schools. In 1963, the new integrated programme known as "National Fitness Corps" (for short NFC) was ap- E proved for adoption in schools. It was decided that the instructors working

uner N.D.S. were to function in the schools under the administrative control of the State Governments. They should be transferred to States and merged with the cadre of Physical Education Teachers of the States.

The pay scale of N.F.C. instructor previously known as N.D.S. inf structor Junior Grade I was Rs.110-200 on 31.12.66. This was revised from time to time. As on 1.1.73 it was Rs.330-560. This was revised to Rs.118-225 with effect from 1.1.67. The petitioner would contend that the pay scales were those which were applicable to teachers in primary schools. The fixation of the said pay scale of the primary school teacher instead of the pay scale of secondary school teacher was given to the N.F.C. instructors G by mistake. Though there were subsequent revisions, the pay scale applicable to a secondary teacher was denied.

Representations were made in this behalf but were of no avail.

Some of the teachers approached the High Court of Karnataka by H means of a writ petition. A writ of mandamus was ultimately issued

TEACHERS' ASSCN. v. U.0.I. [MOHAN, J.) 5

directing the Central Government to extend the revision of pay. That A appeal was dismissed and the judgment is reported in Union of India & Another v. R.G. Kashikar and Anr., AIR 1986 S.C. 431.

After the judgment a representation was filed that N.D.S. instructions were at par with Physical Education Teachers discharging duties in middle, high and higher secondary schools. Therefore, they were entitled B to be treated and be given a scale of pay of secondary school teachers.

Though several circulars were issued in this regard there had not been a proper fixation of scale of pay. In fact, they are entitled to be given the scale of pay that is applicable to the Physical Education Teachers in C middle, high and higher secondary schools and not that of primary school teachers. It is under these circumstances, a writ for mandamus for a direction to the respondent to grant the scale of pay applicable to the Physical Education Teachers in secondary schools, is prayed for.

D In the counter affidavit filed on behalf of Union of India it is averred . that the contention of the petitioners that the pay scale of Junior Grade I N.D.S. instructors was revised to Rs.330- 560 as on 1.1.73 was done by mistake, is not correct. The N.D.S. Junior Grade I instructors were recruited for a specific purpose in the pay scale of Rs.110-200. Their essential qualification was matriculation. A diploma from a recognised E physical training institute was a desirable qualification and not an essential one. Almost all the NOS Instructors were not having this desirable qualification of diploma in physical education. Therefore, though they were assigned the job of physical education teacher, they could not be given the scale of a physical education teacher of Central Schools etc. Between F 1963-65, on the recommendation of a Committee chaired by Dr. Kunzuru, it was decided in consultation with State Education Authorities to transfer the services of these NOS Instructors to the State Governments, in whose schools these Instructors were already working. In 1973, the third Central Pay Commission could not recommend revised scales for these Instructors because they were either temporary or quasi-permanent and were in the G process of transfer to the states' services. In 1986 and 1988, however, the scales of these Ex-Instructors were revised, keeping in view the recommendations of the Illrd Central Pay Commission. Therefore, it is not correct that their scale was revised by mistake and !hat they we.re denied the benefits of Illrd Pay Commission. There is no such categorisation of pay H

A scales of school teachers as secondary school teachers' scales, primary school teachers' scales, etc. Instead, the scales are based on the qualification of the teachers, viz. PGT, TGT, PET, etc. In view of this fact, the scale of pay given to the petitioners is correct on the basis of their qualification and as per their recruitment rules. There were five non-gazetted categories

of NDS Employees whose service were transferred to the states:-

SI.

(i) Supervisor,

(ii) NOS Instructor, Senior Grade I,

(iii) NOS Instructor, Senior Grade II,

(iv) NOS Instructor, Junior Grade I, and

(v) NOS Instructors, Junior Grade II (merged with that of Junior Grade .I w.e.f. 1.3.71).

Their respective scales are as follows:-

Category Old Scale as on New Scale As on 1.1.67 1.1.73

Supervisor Rs.325-75 Rs.1100-1600

NOS Instructor Sr. Gd. I Rs.210-320 Rs.550-900

NDS Instructor Sr. GD. II Rs.150-240 RsA40-750

NOS Instructor Jr. Gd. I Rs.110-200 Rs.330-560

NOS Instructor Jr. Gd. II Rs.95-155 Rs.330-560

These scales were based on the respective .<(ualifications and experience as per the recruitment rules, Accordingly, the Sr. Grade II Instructors were given the scale of ,Rs.150-240 (Rs.440-750 revised as on 1.1.73), the Junior Grade I Instructors Rs.110-200 (Rs.330-560, revised as on 1.1.73), and Junior Grade II Rs.95-155 (Rs.330·560, revised as on 1.1.73). Therefore, G the contention of the petitioners is not correct. The relevance of the Kendriya Vidyalayas' pay scales, here, is due to the fact that they have the pay scale of Rs.330-560 for their primary teachers in their pay structure and the states were cited the example of pay fixation as done by the Kendriya Vidyalaya Sangathan. It was a mere coincidence that the revised B scales of Jr. Gd.I Instructors was equivalent to that of primary teachers of

TEACHERS' ASSON. v. U.0.1. [MOHAN, J.] 7

KVS. Also, since they were not having the essential qualification for A Central Schools' PETs, they could not be given their scales irrespective of the fact that they were doing the duties of physical education teachers. The category of Sr. Gd.II, NOS Instructors have been given these scales on the basis of their qualifications and experience. However, the equivalence of scales is mere coincidence as the cadre of service of NOS Instructors was a separate one under the National Oiscip, ine Scheme/National Fitness Corps Organisation which was created, temporarily, for inculcating discipline and imparting trading in mass drill among the children of refugee camps/colonies, originally in the Ministry of Rehabilitation in 1954 '.\Jld later transferred to the Ministry of Education in 1958. Thus it is submit.ed that there is no violation of the principle of equal pay for equal work.

M;. M.K. Ramamurthy, learned counsel for the petitioners would - .... urge that the principle of equal pay for equal work is an accepted principle of law as on today. Therefore, in as much as if the petitioners are not working in primary schools, they cannot be fixed on the pay scale as applicable to primary school teachers. On the contrary, they would be D entitled to the scale of pay as applicable to secondary school teachers and the revision thereof.

When clear instructions have been issued by the Government of India for upgradation, the same cannot be ignored.

While the Kendriya Vidyalaya teachers have been fixed on the pay scale of Rs.330-560 for primary teachers there is no justification whatever to treat the teachers of the petitioner-Federation as belonging to that Grade of primary school teachers when in fact, not one teacher belonging to the petitioner-Federation is working in primary shool. Thus, it is clear case of a denial of equal pay for equal work.

In opposition to this, Mr. V.C. Mahajan, learned counsel for the Union of India would urge that the rule of equal pay for equal work does not come into play at all in this case. It is incorrect to urge on the part of the petitioners as if there are two grades one for primary school teacher G and another for secondary school teacher. The grades are based on t~-e qualifications. Where such is the position the petitioners cannot have any complaint. .In fact this Court in Mewa Ram Kanojia v. All India Institute of Medical Sciences &Ors., [1989] 1 SCR 957 has uphe1d such gradation based on qualification; That is precisely the position here.

It is also not correct to contend on the part of the petitioners that the work is equal. The responsibilities are entirely different. In such a case the principle of equal pay for equal work cannot apply as laid down by this Court in State of U.P. and Ors., v. J.P. Chaurasia and Ors., [1989] 1 SCC

121. The relevance of Kendriya Vidyalaya pay scale is due to the fact that they have the pay scale of Rs.330-560 for the primary teacher in their pay structure. This was cited as an example of pay fixation as was Qone by Kendriya Vidyalaya Sangathan. Beyond this, this has no application. In short, it is submitted that where gradation is based based purely on the qualification the petitioners cannot have a valid complaint.

The short question that arises for consideration is whether the teachers belonging to the petitioner-Federation are entitled to a pay scale of Rs.440-750 as is applicable to the secondary school teachers with effect from 1.1.73.

National Discipline Scheme was stated by.the Ministry of Rehabilitation in the ye(l.r 1954. This programme was launched under the scheme for instituting discipline and imparting training .in mass drill among the younger generation in the refugee camps and colonies. In the year 1958, the scheme was transferred to the Ministry of Education. It was enlarged to cover a number of high schools. Based on the recommendations of Kunzuru Committee, the scheme was integrated. By such integration a new programme known as National Fitness Corps' was formed.

In February 1965, a meeting of State Education Secretaries and the State Directors of the Public Instruction of the various places took place.

It was decided that the N.D.S. instructors could function in the schools under the administrative control of the State Governments. They would be transferred to the States and merged with the cadre of Physical Education Teachers of the respective States. Pursuant to this, the Central Government informed the States to take over the administrative control of the N.F.C.

G teachers and absorb them in the State service into equivalent cadre. Any expenditure on the staff would be reimbursed by the Government. It was made clear by the Central Government that the pay and allowances of N.F.C. instructions/teachers will be protected. Since the scheme was introduced in the middle school classes, namely, Classes V to XI and not in the primary classes, the petitioners would urge that they cannot be fixed on the H pay scale as applicable to primary school teachers.

TEACHERS' ASSCN. v. U.O.I. [MOHAN, J.] 9

The pay scale of N.F.C. instructor earlier known as N.D.S. Instructor A Junior Grade I as on 31.12.66 was Rs.110-200. This was revised to Rs.118- 225 with effect from 1.1.67. Again, on 1.1.73 this was re\'ised to Rs.330-560.

Since these pay scales according to the petitioners were applicable to primary school teachers in so far as the scheme was made applicable to middle school the fixation of this scale was wrong. Therefore, they should be fixed on the revised scale of pay as applicable to secondary grade teachers at Rs.440-750 with effect from 1.1.73.

From a perusal of the record it is seen that there are no different scales one for primary school teacher and another for secondary school teacher. Once this aspect of the matter becomes clear it will follow that the assumption on the part of the petitioners that they have been fixed on the pay scale of primary school teachers is without foundation. The records

also reveal that the N.D.S. instructors Junior Grade I were recruited for a

spcific purpose. Their pay scale of Rs.110-200, was deliberately fixed.

There was no mistake about it. That is evident from G.S.R. 336 dated 24th D February, 1961 issued by Ministry of Education, Govt. of India. In asmuch as N.D.S. instructors did not have desirable qualification of diploma from a recognised Physical Training Institute as listed out in the Schedule to the said G.S.R. Notwithstanding the fact that they were assigned the job of Physical Education Teacher, they could not be given the pay scale of Physical Education Teacher of Central Schools because of what is stated E ab.ove. The Third Pay Commission also did not recommend the revised pay scales for two reasons: (1) They were either temporary or quasi-permanent or (2) were in the process of transfer to the State service. Therefore, the mistake in fixing the scale of pay as alleged by the petitioners is not tenable.

As rightly submitted by the learned counsel for the respondent, 5 non-gazetted categories of N.D.S. employees namely, (1) Supervisor (2) N.D.S. Instructor Senior Grade I (3) N.D.S. Instructor Senior Grade II (4) N.D.S. Instructor Junior Grade I and (5) N.D.S. Instructor Junior Grade

II which later on came to be merged with Junior Grade I with effect from 1.3.71, came to be fixed on different pay scales. Such fixation of pay scale G was based on the respective qualifications -and experience as per the Recruitment Rules. Where, therefore, such is the position, we are unable to hold that principle of equal pay for equal work would apply. This Court had occasion to point out in Mewa Ram Kanojia v. All India Institute of Medical Sciences and Ors., [1989] 1 SCR 957 @ 962 that: H

\ ..

"The doctrine of 'Equal Pay for Equal Work' is not abstract on, it is open to the State of prescribe different scales of pay for different posts having regard to educational. qualifications, duties and responsibilities of the post. The principle of 'Equal Pay for Equal Work' is applicable when employees holding the same rank perform similar functions and discharge similar uties and responsibilities are treated differently."

Then the question arises as to what is the relevance of Kendriya Vidyalaya's pay scales. By the Office Memorandum dated 30th of Septem- C ber, 1975 dealing with the revision of pay scales of Principal and teachers

of Kendriya Vidyalaya Sangathan, . it was stated that the Government approved the introduction of revised scales of pay for Principals and some categories of teaching staff of Kendriya Vidyalaya Sangathan as shown in the attached statement with effect from 1.1.73. Item 8 of the Statement D reads:

Present Scale

Primary Teacher 165-10~-215-15-275- (0rdinary Grade) EB-15-350

(for higher secondary/ Matric trained)

Revised Scale

330-10-350-EB-380-

15-500- EB-15-560 (for higher secondary/ Matric Trained)

Merely because Item 8 talks of primary teacher it does not mean primary school grade. The relevance is that the pay scale of primary teachers of Kendriya Vidyalaya is Rs.330-560 in their pay structure. This F was cited as an example to the Statess for pay fixation. It was a mere coincidence that the revised pay scale of Junior Grade I instructors was equivalent to that of primary teachers of Kendriya Vidyalaya Sangathan. It should be remembered that they did not have the essential qualification to be taken in service in Central Schools as Physical Education Teachers.

Therefore, they could not be given their pay scales regardless of the fact •G that they were doing the duties of Physical Education Teachers. This Court had occasion to .consider parity in employment and the pay fixation thereof, in State of U.P. and Ors. v. J.P. Chaurasia and Others, (1980) 1 SCC 121 at

I page 136 it was thus held:

l "In the present case, all Bench Secretaries may do the

TEACHERS' ASSCN. v. U.O.l. [MOHAN, J.]

same work, but their quality of work may differ. Under the rules framed by the Chief Justice of High Court, Bench Secretaries Grade I are selected by a Selection Committee. The selection is based on merit with due regards to seniority. They are selected among the lot of Bench Secretaries Grade II. When Bench Secretaries Grade II acquire experience and also display more merit, they are appointed as Bench Secretaries Grade I. The rules thus make a proper classification for the purpose of entitlement to higher pay scale. The High Court has completely overlooked the criterion provided under the Rules. The merit governs the grant of higher pay scale and that merit will be evaluated by a competent authority. The classification made under the Rules, therefore, cannot be said to be violative of the right to have equal pay for equal work"

Therefore, where the responsibilities are different and the nature of work is also different the petitioners cannot be heard to contend that they D will be entitled to the scale of pay as is applicable to secondary school teachers.

In the result, we find no merit in the writ petition and accordingly the writ petition is dismissed with no orders as to cost.

N.P.V.

Petition dismissed.