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State of Gujarat Vs. Thakorbhai Vallabhbhai Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 14 of 1972
Judge
Reported in(1972)0GLR708
ActsConstitutional Code; Constitution of India - Articles 14 and 16; Recruitment Rules - Rule 1
AppellantState of Gujarat
RespondentThakorbhai Vallabhbhai Naik and ors.
Cases ReferredState of Mysore v. P. Narasinga Rao (supra). That
Excerpt:
.....made by the state. here the assistant lecturers are divided into two broad categories, namely, degree-holders and experienced diploma-holders, and the reason on which the classification is based is that, broadly speaking, in the generality of cases, a holder of a second class degree in any branch of engineering would be superior in training and equipment and possessed of a higher intellectual and mental calibre than a mere holder of a diploma even though possessing three years' teaching and/or professional experience :the former would, by and large, be more efficient and better equipped to discharge the functions and duties of the post of an assistant lecturer than the latter. the fixation of a higher pay scale for degree-holders is dictated by consideration of efficiency of service..........experience'. those who are recruited as assistant lecturers may, therefore, be either second class degree-holders in the respective branch of engineering with or without experience (hereinafter referred to as degree-holders) or just ordinary degree-holders or second class diploma holders in the respective branch of engineering with at least three years' teaching and/or professional experience (hereinafter referred to as experienced diploma-holders). now, for a long time there was one common pay scale for assistant lecturers irrespective of whether they were degree-holders or experienced diploma-holders. there was no distinction made between them for the purpose of fixation of pay scale. but the government of gujarat for the first time by a resolution dated may 30, 1964 made a distinction.....
Judgment:

Bhagwati, C.J.

1. This letters patent appeal raises a short question as to the constitutional validity of prescription of different scales of pay for assistant lecturers who are holders of second class degree with or without experience and assistant lecturers who are experience and assistant lecturers who are second class diploma-holders with three years' teaching and/or professional experience. The question arises in relation to assistant lecturers in different branches of engineering employed in various Government Polytechnics in the State of Gujarat. The recruitment of these assistant lecturers is to be made by nomination and the qualifications for their recruitment are laid down in the Recruitment Rules made by the State Government. These rules are administrative rules without any force of law but it is common ground between the parties that they have been consistenly observed in making recruitment of assistant lecturers. Rule 1 of these rules which provides for recruitment of assistant lecturers reads as follows :

'1. Appointment to the above posts shall be made by nomination from amongst candidates who are not more than 30 years of age and possess :

at least II Class degree in the respective branch of engineering with or without experience.

or

at least a degree or at least a II Class diploma in the respective branch of engineering, with at least three years' teaching and/or professional experience'.

Those who are recruited as assistant lecturers may, therefore, be either second class degree-holders in the respective branch of engineering with or without experience (hereinafter referred to as degree-holders) or just ordinary degree-holders or second class diploma holders in the respective branch of engineering with at least three years' teaching and/or professional experience (hereinafter referred to as experienced diploma-holders). Now, for a long time there was one common pay scale for assistant lecturers irrespective of whether they were degree-holders or experienced diploma-holders. There was no distinction made between them for the purpose of fixation of pay scale. But the Government of Gujarat for the first time by a resolution dated May 30, 1964 made a distinction between assistant lecturers who are degree-holders and assistant lecturers who are experienced diploma-holders and fixed a higher pay scale for the former class as compared to the latter. The petitioners who are assistant lecturers belonging to the latter class, that is experienced diploma-holders, thereupon made representations to the Government complaining against this discrimination in the fixation of pay scale, but they did not pursue their representation further since in the meantime the State Government appointed a Pay Commission to revise the pay scales of all Government employees. The Pay Commission in its recommendation maintained the distinction between degree-holders and experienced diploma-holders and suggested a higher pay scale for degree-holders than for experienced diploma-holders. The State Government accepted the recommendation of the Pay Commission and fixed a higher pay scale of Rs. 350-20-450-EB-25-550-EB-30-700 for degree-holders and a lower pay scale of Rs. 325-15-400-EB-20-500-25-575 for experienced diploma-holders. The petitioners represented to the State Government against this discrimination in the fixation of pay scales but their representation was not heeded and hence they preferred Special Civil Application No. 1475 of 1970 challenging the fixation of lower pay scale for experienced diploma-holders as discriminatory and violative of Art. 16 of the Constitution. A. D. Desai, J. who heard the special civil application took the view that there was no reasonable ground for making distinction between assistant lecturers who are degree-holders and assistant lecturers who are experienced diploma-holders in the matter of fixation of pay scale when they were treated alike in all other respects and formed 'a single unit of employment having a common source of recruitment and a common seniority list and no distinction in the matter of promotion to the post of lecturer.' The learned Judge accordingly struck down the fixation of different pay scales and directed the State Government to treat the petitioners on par with degree-holders in the matter of pay scale. This view taken by the learned Judge is assailed in the present letters patent appeal.

2. The question is whether fixation of different pay scales for assistant lecturers who are degree-holders and assistant lecturers who are diploma-holders is discriminatory and hence violative of Art. 16 of the Constitution. Now what is the true scope and ambit of Art. 16 is well-settled and it is not necessary to embark upon a discussion of the various authorities bearing on the subject. Article 16 assures equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. It represents an instance of application of the doctrine of equality which in its general formulation is to be found in Art. 14. It gives effect to the concept of equality in matters relating to employment or appointment to any office under the State. The expression 'matters relating to employment' in Art. 16 has received wide and liberal construction, and, as pointed out by the Supreme Court in General Manager, Southern Rly. v. Rangachari, [1970 - II L.L.J. 289]; A.I.R. 1962 S.C. 36, it includes 'all matters in relation to employment, both prior and subsequent to the employment, which are incidental to the employment and form part of the terms and conditions of such employment.' This expression would, therefore, include not only matters relating to employment but also matters relating to 'salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation'. Article 16 requires that there should be equality of opportunity in regard to all these matters and a fortiori, therefore, the concept of equality must apply also in the matter of fixation of pay scales. But, as has been said often while dealing with the equality clause enshrined in Art. 14, the doctrine of equality does not require that all shall be treated alike, irrespective of the differences amongst them. Article 14 does not enjoin the State to ignore differences between persons or things for the purpose of legislation. What it forbids is class legislation, or, in other words, legislation which would treat differently those who are similarly situate. It does not forbid reasonable classification of persons or things for the purpose of legislation. When any statutory provision or rule is assailed on the ground that it violates Art. 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision. In other words, there must be some rational nexus between the basis of the classification and the object intended to be achieved by the statute or the rule. Now, as we have pointed out above, Art. 16 is only an incident of the doctrine of equality enshrined in Art. 14. Articles 14 and 16, as observed by the Supreme Court in State of Mysore v. P. Narsinga Rao, [1968 - II L.L.J. 120]; A.I.R. 1968 S.C. 349, 'form part of the same constitutional code of guarantees and supplement each other'. Article 16 must also, therefore, be construed in the same manner as Art. 14 and it must be held that there is no denial of equality of opportunity embodied in Art. 16 if a classification of employees is made by the State which satisfies the two tests to which we have just referred. The State is not prohibited by Art. 16 from making a reasonable classification of employees provided the classification is based on intelligible differentia which has relation or nexus with the object of the statutory provision or rule. Now, here a classification of assistant lecturers is made by the State into two groups, one group consisting of assistant lecturers who are degree-holders and the other group consisting of assistant lecturers who are experienced diploma-holders, and a higher pay scale is provided for assistant lecturers belonging to the former while a lower pay scale is provided for assistant lecturers belonging to the latter group. The question is whether this classification made by the State violates the rule of equality of opportunity embodied in Art. 16. To answer the question we must ask ourselves whether assistant lecturers who are experienced diploma-holders can be said to be similarly situate so that differentiation between them in the matter of fixation of pay scales would be irrational and unjustified by any considerations relevant to the object of fixation of pay scales or, to put it briefly, the classification of assistant lecturers into two groups for the purpose of fixation of pay scales can be said to be based on intelligible differentia having rational relation to the object sought to be achieved by fixation of pay scales.

3. While considering this question it is necessary to bear in mind the nature of the post in relation to which the question arises for consideration. The post with which we are concerned is the post of assistant lecturer in Government Polytechnics in the State of Gujarat. Now there can be no doubt that a holder of a second class degree in the respective branch of engineering would be better equipped and fitted to discharge the functions and duties of the post of assistant lecturer than a holder of a mere diploma in the respective branch of engineering even if he has three years' teaching and/or professional experience. The possession of a second class degree would definitely indicate higher intellectual and mental calibre of the holder and he would be a better equipped and more efficient assistant lecturer than a person who has merely obtained a diploma. Of course, when we say this, we do not for a diploma can in no case be superior to a holder of a second class degree. There may be exceptional cases where a diploma-holder may be more capable and possessed of a higher calibre than a second class degree-holder but such cases would be rare and the State cannot, while making a rule dealing with broad categories, be expected to provide for all exceptional cases. Or else, as pointed out by me in a judgment given on 30th January, 1969 in Special Civil Application No. 670 of 1966, 'the rule may become so overloaded with qualifications and exceptions that it may tumble down of its own weight. It must be remembered that no classification can be logically complete or accord with a pattern of plumbline precision ... Life is not capable of being divided into water-tight divisions or categories and it is not possible to force the teeming multiplicity and variety of human activity into a procrustean bed of symmetrical rules. Absolute precision and complete symmetry are unattainable ..... The classification which is sought to be challenged has, therefore, to be considered substantially and qualitatively and not superficially. When the impugned legislative or executive action indicates a policy and brings within its operation those who are similarly situated and it appears that the policy is a result of specific difficulties and the end to which it is directed is not objectionable on the ground that there is arbitrary or hostile discrimination', the Court would not overthrow it simply because it leaves out of account exceptional cases and does not make special provision for them, resulting in some inequality of treatment in those cases. The constitutional validity of a statutory provision or rule cannot be judged by reference to exceptional cases. The State can make a classification only on broad and general lines for the purposes of achieving a specific end and the classification cannot be condemned as arbitrary or irrational merely because some exceptional cases may not fit into the broad categories made by the State. So long as the basis on which the classification is made is directed to achieve a specific end and is supportable on a genuine reason and does not amount to naked discrimination, some inequality which may result in the application of the rule should be regarded as merely incidental and not looked upon as unreasonable discrimination. Here the assistant lecturers are divided into two broad categories, namely, degree-holders and experienced diploma-holders, and the reason on which the classification is based is that, broadly speaking, in the generality of cases, a holder of a second class degree in any branch of engineering would be superior in training and equipment and possessed of a higher intellectual and mental calibre than a mere holder of a diploma even though possessing three years' teaching and/or professional experience : the former would, by and large, be more efficient and better equipped to discharge the functions and duties of the post of an assistant lecturer than the latter.

4. If this be the position, can it be said that the fixation of a higher pay scale for degree-holders and a lower pay scale for experienced diploma-holders is violative of the rule of equal opportunity enshrined in Art. 16 We think not. The object behind making of rules relating to recruitment and conditions of service of persons employed in public service is always efficiency of public service. The classification of assistant lecturers made by the State into degree-holders and experienced diploma-holders cannot be said to be unrelated to this object. The State has given a higher pay scale to degree-holders in order to attract them to the post of assistant lecturer with a view to improving the efficiency of service. The fixation of a higher pay scale for degree-holders is dictated by consideration of efficiency of service and that is clearly a legitimate consideration for the State to take into account. If the State can achieve greater efficiency of service by attracting degree-holders and if the State finds that in order to do so, it is necessary or expedient to give a higher pay scale to the degree-holders, the State can give such higher pay scale to the degree-holders without in any way violating the rules of equality of opportunity. The experienced diploma-holders cannot be said to be similarly situate with the degree-holders so far as fixation of pay scale is concerned, because generally, by and large, the degree-holders would be more capable and better equipped to discharge the functions and duties of the post of an assistant lecturer than experienced diploma-holders and a higher pay-scale can be given to them in order to attract them in the service with a view to improving the efficiency of service.

5. The petitioners, however, contended that it was not permissible to the State to make a discrimination between degree-holders and experienced diploma-holders in the matter of fixation of pay scales, because they were treated alike in all other respects and they were merged in one unified cadre. It was pointed out on behalf of the petitioners that all experienced diploma-holders were equated with degree-holders for the purpose of recruitment to the post of assistant lecturer and there was no distinction made between them so far as initial appointment was concerned. There was also no distinction made between degree-holders and experienced diploma-holders after recruitment. There was one common seniority list of assistant lecturers irrespective of whether they were degree-holders or experienced diploma-holders and they all ranked in the common seniority list according to the length of continuous officiation as assistant lecturers. There was also no distinction made between them in the matter of promotion to the post of lecturer and even in the post of lecturer they were treated similarly in that no preferential pay scale was given to degree-holders as compared to experienced diploma-holders. There was also no difference in the nature of the functions and duties discharged by the degree-holders and the experienced diploma-holders. It was said on behalf of the petitioners that, in view of these considerations, it was not open to the State to fix different pay scales for degree-holders and experienced diploma-holders : no discrimination could be made between them in the matter of pay scales when otherwise they were treated similarly in all other respects. This contention found favour with A. D. Desai, J. but, with the greatest respect to the learned Judge, we find ourselves unable to accept it. We are of the view that the aforesaid considerations to which we have referred do not in any way affect the validity of the reason for the classification made by the State in the matter of fixation of pay scales.

6. It is no doubt true that there are no separate quotas for recruitment of assistant lecturers from degree-holders and experienced diploma-holders and both are equally eligible for appointment as assistant lecturers but that does not make any difference to the determination of the main question before us. The qualifications prescribed by Rule 1, namely, that a candidate must be a second class degree-holder with or without experience or an ordinary degree-holder or second class diploma-holder with at least three year's teaching and/or professional experience are the minimum qualifications for being considered eligible for appointment as assistant lecturer. If, therefore, a candidate possesses a second class diploma with three year's teaching and/or professional experience, he would be eligible to be considered for the post of assistant lecturer but from that it does not follow that he would stand in a position of equality with a second class degree-holder so far as recruitment is concerned. The recruiting authority would yet have to determine which candidate to prefer for recruitment and there, the fact that a candidate is a second class degree-holder would always weigh with the recruiting authority and such a candidate would ordinarily have a better scope for being selected for appointment than a candidate who possesses only a second class diploma. This would appear to be abundantly clear from paragraph 4 of the affidavit in reply filed by the Under Secretary to the Government of Gujarat, Education and Labour Department, where it has been stated that 'in absence of the availability of second class degree-holders, the alternate qualification of second diploma-holders with three years' experience is considered so that the students may not suffer in teaching for want of teachers.' It would not, therefore, be right to infer from mere prescription of minimum qualifications for eligibility that experienced diploma-holders are treated by the rules as equal in merit with degree-holders for the purpose of recruitment.

7. The other considerations referred to on behalf of the petitioners are also of no consequence. It cannot be said that merely because a common seniority list is maintained for degree-holders and experienced diploma-holders, a differentiation cannot be made between them for the purpose of fixing pay scales, if otherwise it is found that fixation of different pay scales for them is justified having regard to the differential between them from the point of view of efficiency of service. It is equally irrelevant that for the purpose of promotion to the post of lecturer, no distinction is made between degree-holders and experienced diploma-holders. We do not wish to express any opinion on the question as to whether differentiation between degree-holders and diploma-holders in the matter of promotion to the post of lecturer, if made, would have been justified. But merely because no differentiation is made between them in the matter of promotion to the post of lecturer, it does not follow that no differentiation can be made between them in the matter of fixation of pay scales in the post of assistant lecturer, if otherwise there is valid justification for doing so. It is quite possible that the State Government might have thought that in view of fixation of higher pay scales for degree-holders, it would be possible to recruit a reasonably good number of degree-holders as assistant lecturers with efficient persons and thereafter no further differentiation need be made between degree-holders and experienced diploma holders. We do not, therefore, think that any of the petitioners is sufficient to detract from the validity of the reason for the classification made by the State between degree-holders and experienced diploma-holders in the matter of fixation of pay scales.

8. The view which we are taking appears to us to be fairly clear on principle, but we may point out that there is also a decision of the Supreme Court which completely supports it. In fact, having regard to this decision of the Supreme Court, it is not possible for us to take a different view. We have no doubt that if this decision of the Supreme Court has been cited before A. D. Desai, J., he would not have taken the view which he did and would have taken the view which he did would have come to the same conclusion which we are reaching. The decision which we have in mind is the decision of the Supreme Court in State of Mysore v. P. Narasinga Rao (supra). That was also a case where a differentiation was made between matriculate tracers and non-matriculate tracers in the matter of fixation of pay scales. The State of Mysore fixed a higher pay scale of Rs. 50-120 for matriculate tracers and a lower pay scale of Rs. 40-80 for non-matriculate tracers and the question arose whether the creation of two pay scales of tracers who were doing the same kind of work amounted to discrimination forbidden by Arts. 14 and 16. The argument on behalf of the non-matriculate tracers was that success in the matriculation examination had no relevance to the post of tracers and matriculate tracers and non-matriculate tracers were, therefore, similarly situate and there was no rational basis for making two classes of tracers, one consisting of those who had passed the matriculation examination and the other consisting of those who had not, and fixing a higher pay scale for matriculate tracers and a lower one for non-matriculate tracers. This argument was negatived by the Supreme Court and Ramaswami, J., speaking on behalf of the Supreme Court, after examining the scope and ambit of Arts. 14 and 16 observed :

'It is open to the Government to consider also the general educational attainments of the candidates and to give preference to candidates who have better educational qualifications besides technical proficiency of a tracer ..... In our opinion, therefore, higher educational qualifications such as success in the S.S.L.C. examination are relevant considerations for fixing a higher pay scale for tracers who have passed the S.S.L.C. examination and the classification of two grades of tracers in the new Mysore States, one for matriculate tracers with a higher pay scale and the other for non-matriculate tracers with a lower pay scale is not violative of Arts. 14 or 16 of the Constitution'.

These observations are, in our opinion, decisive of the question before us. It is clear from these observations that possession of a higher educational qualification is a relevant consideration for fixing a higher pay scale. If higher educational qualification such as success in the S.S.L.C. examination was regarded by the Supreme Court as a relevant consideration for fixing a higher pay scale for matriculate tracers, it must follow a fortiori that in a post such as that of an assistant lecturer where higher educational qualification would have much greater significance and would definitely and undoubtedly invest the incumbent of the post with greater competence, equipment and expertise in his particular branch of engineering, such higher educational qualification would certainly be a relevant consideration for fixing a higher pay scale for those who posses it as against those who do not.

9. We are, therefore, of the view that the fixation of different pay scales for assistant lecturers who are degree-holders and assistant lecturers who are experienced diploma-holders is not violative of Art. 16 of the Constitution. We accordingly allow the appeal and set aside the decision given by A. D. Desai J. and dismiss the petition. There will be no order as to costs all throughout.


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