Kan Singh, J.
1. This is a writ petition under Article 226 of the Constitution by on Shri F.C. Puri, an Assistant Director in the; Forensic Science Laboratory at Jaipur in the questioned Documents Section, for an appropriate writ, direction or order. He prays that a portion of Rule 6 of the Rajasthan Civil Services (New Pay Scales Rules, 1969, as also certain remarks appearing In Columns 4, 5, and 6, respectively of the Schedule I to these Rules be struck down being violative of Articles 14 and 16 of the Constitution.
2. The petitioner applied for the post of Assistant Director, Forensic Science Laboratory, Rajasthan in the questioned Documents Section in pursuance of an advertisement issued by the Rajasthan Public Service Commission on 7-1-60. It was mentioned in the advertisement that 5 posts of Assistant Directors in the scale of pay Rs. 200-15-275-20-375-EB-25-600 were to be filled in the qualifications prescribed were, besides the age for which there is no dispute, M.Sc. in Physics or Chemistry in the second Division and training in Photography; or Photomicrography and training in examination of questioned documents and forged currency notes in some Government Laboratory. It was however, mentioned that age and other qualifications could be relaxed by the Commission in its discretion in the case of candidates who were otherwise well qualified or for departmental candidates under exceptional circumstances the petitioner was a Bachelor of Science with Physics and Mathematics and therefore, it appears that the Commission in the exercise of their discretion relaxed the academic qualifications and then recommended the petitioner for appointment. By an order of the Government dated 20-5-61 the petitioner was appointed as Assistant Director, Forensic Science Laboratory in the questioned Document Section on probation for one year. He was confirmed on the post by an order dated 2-5-61 on successful completion of the probation period there was a revision of pay scales in Rajasthan generally on the promulgation of the Rajasthan Civil Services (Revised Pay) Rules, 1961, hereinafter to be referred as the '1961 Rules' and accordingly the pay grade of an Assistant Director in the Forensic Science Laboratory came to be revised to Rs. 225-15-270-20-390-25-640 with effect from 1-9-61 the petitioner got his pay slip in the revised pay grade on 9.1.63.the 1961 Rules were amended in 1965 by a Government notification dated 11.6.65 as a result thereof the pay grade of an Assistant Director, Forensic Science Laboratory came to be revised to Rs. 360-25-560-30-590-EB-30-860-900 with a minimum start of Rs. 435/- In accordance with the aforesaid amendment of 1961 Rules the petitioner was issued a revised pay slip by the Accountant General on 9-7-65 effective from 1-6-65.the Government then appointed a Pay Commission known as 'Ranawat Pay Commission' for a thorough examination of the existing pay structure of all the employees of the Rajasthan Government and to propose revision of pay Scales. On 1.7.68, the Ranawat Pay Commission submitted its report regarding the revision of pay grades to the Government the petitioner claims that the Ranawat Pay Commission recommended pay grade of Rs. 700 40-1100-50-1200 for Assistant Director in the Forensic Science Laboratory the petitioner proceeds to state that the State Cabinet accepted the recommendations of the Ranawat Pay Commission and accordingly it had accented the proposal for revising the pay grade of on Assistant Director in the Forensic Science Laboratory to Rs. 700-1200. According to the petitioner, this revised pay grade was to be allowed to the incumbents irrespective of their academic qualifications. However, when effect was sought to be given to the Government decision accepting the recommendations of the Ranawat Pay Commission and the Rajasthan Civil Service (New Pay Scale) Rules, 1969, hereinafter to be. referred as the '1969 Rules' there was a departure from the Cabinet decision and the impugned provisions were made in the Rules. I may here read the relevant provisions of the 1969 Rules.
3. Rule 1 contains the short title. Rule 2 lays down the categories of Government servants to whom the Rules apply. Rule 3 vests power in the Governor to order relaxation of Rules and it runs as follows:
Rule 3. Relaxation of rules Where the Governor is satisfied that the operation of any of these rules undue hardship in any particular case, he may, by order, relax the requirements of that rule to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner.
Rule 4 is about interpretation. Rule 5 contains certain definitions. Rule 6, the portion of which is under challenge in the present writ petition, runs as follows:
Rule 6 Drawal of Pay in New Pay Scales. - (1) Save as otherwise provided in these rules a Government servant shall draw pay in the New Pay Scales applicable to the post which he is holding on 1.9.1968, or to which he is appointed on or after 1.9.1968.
(ii) In respect of any Service/Cadre or Class of posts for which no rules regulating recruitment and conditions of service have been framed under proviso to Article 309 of the Constitution or where a post/posts have not been included in the Schedule appended to Rules regulating recruitment and conditions of service, the academic qualifications and experience as prescribed by or with the concurrence of the Finance Department from time to time shall continue to be operative and shall be deemed to have been made applicable to such Service/Cadre or class of posts in the New Pay Scale with effect from 1.9.68, provided that, where additional or revised qualifications have been specified in column 6 of the Schedule I, (embodied as remarks) the pay in the New Pay Scales shall not be drawn until such additional or revised qualifications are possessed or acquired by the Government servant.
Then there is a long Schedule attached to these Rules. This Schedule has a number of sections. Section A enumerates the various pay grades introduced by the 1969 Rules there are in all 33 pay grades. Section B makes provision for the pay grades of State Services the general pattern teems to be that the first column is Serial Number, the second column contains the name of post, the third column contains the existing pay scale, the fourth column contains the new pay scale and the last column indicates the number of the scale, the post of Assistant Director in the Forensic Science Laboratory is shown under the Police Department the relevant entry is as follows:
2. Senior Scale 560-950 700-1200 (22).Admissibility of scale to the existingemployees is subject to the fulfilment ofthe following qualifications:(1) Assistant Director (Questioned Documents Section)(a) M. Sc. II Division in Physics or Chemistry.(b) Training in Photography & Photo Micrography.(C) Training in Examination of QuestionedDocuments and ForgidCurrency Notes in some GovernmentLaboratory.
The petitioner contends that while the petitioner was in the cadre of Assistant Directors in the Forensic Science Laboratory and had been appointed in relaxation of the provision in the advertisement for possessing the M. Sc. qualification in Second Glass, the remarks column in the above entry by introducing the requirement of M.Sc. Second Class creates a discrimination as between the officers belonging to the same cadre. While persons having the academic qualifications laid down will get the higher grade, the petitioner shall get the lower grade. According to the petitioner, once the incumbents are put in one cadre giving of separate pay scales to persons belonging to the same cadre is discriminatory the petitioner further contends that once the Public Service Commission had relaxed the requirement of academic qualification in the advertisement and the petitioner entered the cadre of Assistant Directors in the Forensic Science Laboratory the petitioner by fiction shall be deemed to possess the requisite academic qualifications whenever the pay scales are revised or whenever there is a question of further promotion the petitioner lastly, contended that the Governor had made the relaxation under Rule 3 of the 1969 Rules in cases of others and, therefore, he should have made such a relaxation in favour of the petitioner as well and on this score also the petitioner has been subjected to a discriminatory treatment.
4. The writ petition has been opposed by the State. It is denied that the provisions of Rule 6 of the Rules or the relevant entry in the Schedule appended to the Rules and which has been extracted above were violative of Articles 4 or 16 of the Constitution or were otherwise invalid It is submitted that it is open to the State to give a higher pay scale to incumbents possessing higher academic qualifications in comparison to those who do not have such qualifications as the grouping or classification has a clear object of imparting efficiency in the administration. It was further submitted that the cadre of Assistant Directors in the Forensic Science Laboratory has a number of groups, like (1) Chemical,(2) Physical, (3) Ballastic, (4) Biological section they, according to the State, require more technical work with latest scientific methods in comparison to the Assistant Director, In charge of questioned Documents and, therefore, according to the State higher qualifications and experience were essential for the incumbents of these posts and consequently the petitioner who did not possess the academic qualification of being M.Sc. in Second Class cannot have the same higher pay scale as was given to the other Assistant Directors.
5. The arguments centered round the applicability of the doctrine of equality under Articles 14 and 16 of the Constitution While learned Counsel for the petitioner contended that; such a; difference or distinction in the pay scales as between the incumbents in the same cadre cannot be introduced, learned Additional Government Advocate countered this. Both the learned Counsel referred me to a number of cases drawing support for their respective contentions and I propose to deal with these cases.
6. It is well settled that classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object to be achieved by legislation. Article 16 is only an instance or incident of the guarantee of equality enshrined in Article 14; it gives effect to the doctrine of equality in the sphere of public employment the concept of equal opportunity to be found in Article 16 permeates the whole spectrum of an individual's employment from appointment through promotion & termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which is one of the great socio-econmic objectives set out in the preamble of the Constitution the constitutional code of equality and equal opportunity, however, does not mean that the same laws must be applicable to all persons. It does not compel the State to run all its laws in the channels of general legislation.' It recognised that having regared to differences and disparties which exist among men and things, they cannot all be treated alike by the application to them of the same laws. If is sufficient to refer to only a recent case of their Lordships in support of these observations namely, Mohammed Shujat v. Union of India 1974 (2) SLR 508. In that case their Lordships further observed that it may be perfectly legitimate for the administration to say that having regard to the nature of the function and duties attached to the post for the purpose of achieving efficiency in public service, only degree holders in engineering shall be eligible for promotion and not diploma or certificate holders But where graduates & non-graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to section; how consistently with the claim for equal opportunity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota their Lordships added that to permit discrimination based on educational attainments not obliged by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. A rule of promotion which while conceding that non graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non graduate Supervisors, would clearly be calculated to destroy the guarantee of equal opportunity.
7. What is to be noticed from the above observations is that for the purpose of promotion to higher post it is permissible to give preference to the employees in the lower grade on the basis of academic qualifications, but what is not permissible is that if persons in the tame cadre are made eligible for entry in to the higher cadre, no separate quora on the basis of academic qualifications could be fixed for the incumbents in the lower cadre from which promotions to the higher cadre are to be made.
8. In S.N. Subha Rao v. State of Mysore and Anr. 1974 SLJ 255, Mysore civil Services Revised Pay Rules were revised and the question that fell for consideration was whether different pay scales to persons within the same cadre could be fixed by the Government on the bass of qualification of the Government employees and whither such fixation will not offend the Articles 14 and 16 of the Constitution the Mysore High Court held that the State cannot make any discrimination in the matter of pay scale amongst the Officers belonging to the same cadre on the ground that some of the Officers have higher qualification than the others.
9. In P. Satyanarayana Raju etc. 1974 SLJ 8, the Andhra Pradesh High Court observed that assuming that the classification of Supervisors into graduate and non-graduate Supervisors based on there educational qualifications was a permissible classification for the purpose of promotion to the posts of Assistant Engineers which required greater skill and higher competence. It did not follow that a classification based on educational qualification was permissible in the matter of salary when all of them belonged to one integrated service having been recruited by the same process of selection and in the case of direct recruitment to the posts of Supervisors in competition with each other and did the same work, carried the same responsibilities, discharged the same duties and performed the tame functions.
10. In Rukminilal v. State AIR 1969 Assam & Nagaland 79 it was observed that once the minimum educational qualification is relaxed and the candidate is appointed it is not open to the Government, unless there is contract to the contrary, to use the want of minimum educational qualification to interfere with his prospects in service. When the scales of pay are revised ipso facto the candidate is entitled to it as he had been appointed to the post and holding it for a long period of years with apparently nothing against him in the discharge of his duties. When the revised scales introduced different pay for those with and those without the minimum educational qualification, the utmost that can be said about it is that it would apply only to new incumbents, who knowing the difference, accept the appointment. It certainly cannot be held to apply to persons already appointed holding the post and tendering service.
11. In Punjab State v. Lekh Raj it was held that an executive order placing some members of a unified cadre in a higher scale of pay as against other members of a same cadre on the ground that those favoured were better qualified is violative of the fundamental right guaranteed by Article 16 to those members of the initially same cadre who have been prejudicially affected by such a direction.
12. In Aswani Kumar v. P.C. Mukherjee : (1969)ILLJ816Cal while a learned Single Judge was dealing with a contempt matter he incidentally made the following observations:
In my judgment, I held that the impugned order violated both Articles 14 and 16 of the Constitution inasmuch as though the ordinary Graduates having Honours or a Master's degree were appointed as a single unit on the announcement that they would get the same scale of pay, the impugned order sought to make a subsequent discrimination by offering higher pay to the Honours Graduates and Post-Graduates without any reasonable basis for such favourable treatment.
13. In State of Gujarat v. Thakorbhai 1973 (2) SLR 263the learned Judges of the Gujarat High Court held that a difference in pay scales on the basis of qualifications as between Diploma holders and degree Holders appointed as Assistant Engineers who were given higher scale of pay wan not hit by Article 16 the learned Judges observed that while considering the question it is necessary to bear in mind the nature of the post in relation to which the question arises for consideration the learned Judges were considering the post of on Assistant Lecturer in Government Polytechnic and went on the say that there could 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 & duties of Assistant Lecturer than a bolder of a mere diploma in the respective branch of engineering even if he has three year's teaching and or professional experience the possession of a second class degree would definitely indicate higher intellectual and mental calibre of the bolder and he would be a better equipped and more efficient Assistant Lecturer than a person who has merely obtained 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.
14. In Ghansyam Lal v. State of Madhya Pradesh 1971 SLR 610 again it was a cane of Lecturers with post graduate qualification being given a scale of higher pay than the graduate lecturers though both were performing the same kind of work the classification was held valid.
15. In O.P. Gupta v. M.C. of Delhi 1973 (1) SLR 209 the learned Judge of the Delhi High Court held that diploma holders and degree holders formed one class when they were absorbed as Assistant Engineers and become equal in the class of Assistant Engineers. While they remained in the class of Assistant Engineers, there could be no discriminatory treatment between them Merely because diploma-holders and degree holders belonged to the class of Assistant Engineers would not however, give the Diploma holders a right to enter a higher cadre for which they did not possess the prescribed qualifications. In a case where some persons belonging to one class do not possess the qualification required for the post in the higher class, no unequal treatment can be said to have been meted out to such persons if the result of the specification of qualification for the higher class is to exclude them from promotion.
16. In Kishori v. Union of India : 44ITR532(SC) , their Lordships were considering the cases of Income-tax Officers of class I and II who were discharging similar duties. Income tax Officers of class I were made eligible for appointment as Assistant Commissioners, but Income-tax Officers of class II were made eligible for promotion as Income-tax Officers class I, but not for promotion to the post of Assistant Commissioners. It was held by their Lordships that there was no denial in such a case of equality of opportunity as among citizens holding posts in different grades in Government services. Further, as regards the prescribing of different pay scale for doing the same kind of work, their Lordships observed that the abstract doctrine of equal pay for equal work has nothing to do with Article 14 which cannot be said to be violated where the pay scales of Class I and class II Income-tax Officers are different though they do the same kind of work.
17. In State of Mysore v. P. Narasinga Rao AIR 1968 SC 349 the classification of two grades of tracers one for Matriculate tracers with a higher pay scale and the other for non Matriculate tracers with lower pay scale was not held to be violative of Articles 14 or 16.
18. In State of J & K. v. T.N. Khosa : (1974)ILLJ121SC their Lordships were considering the cause of Assistant Engineers some of whom were graduates & the others were non-graduates for the purpose of promotion to higher cadre on the basis of educational qualification. Their Lordships observed that though some persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could for purpose of promotion to the cadre of Executive. Engineers be classified on the basis of education qualification the Rule providing that graduates shall be eligible, for such promotion to the exclusion of diploma-holder's dots not violate Articles 14 and 16 of the Constitution.
19. Now from a survey of the various cases to which my attention was invited it is clear that if persons are put in the same cadre and then while they continue in the same cadre different scales of pay is sought to be prescribed then in the absence of anything more such prescribing of different pay scales for persons in the same cadre will not be permissible though distinction could be made on the basis of that qualification for promotion to higher cadre there is only the Assam case which deals with a situation like the persons one where a person is appointed on a post with certain minimum qualification in the exercise of the discretion of the appointing authority. If there are two persons, for one of whom the qualifications are relaxed and the other for whom the qualifications are not relaxed and they are both working in the same cadre then normally they have to be given the same pay scaler, unless the differential treatment is justified according to the special needs of the particular post. Learned Additional Government Advocate argued that higher pay scale was prescribed far persons with better qualifications with a view to imparting efficiency in the discharge of duties of the incumbents though in the same cadre the argument is, no doubt, attractive, but there is no case in which persons who Were given the same pay scale at the time of initial entry into service other after as a result of subsequent revisions of pay scale but ultimately at the time of last revision of pay scales differential treatment is accorded to persons in the same cadre to have benefit of the higher revised pay scale, merely because such persons with better academic qualifications. If persons are working for a number of years in the same cadre then how will the giving of a higher pay scale will impart efficiency to persons with better academic qualifications is not easily understandable. If there is a provision for enabling the persons with certain academic qualifications to acquire higher academic qualifications then there may be some justification for it, but otherwise there will be no nexus between the qualifications, the giving of different pay scales and the object of efficiency be achieved the position might be different when one is to be considered for promotion to a higher cadre, but while all continue in the same cadre they should normally have the same pay scales, unless there is some rational basis for revising the pay to a person with higher academic qualification upwards in comparison of a person with less academic qualifications. However, the relevant provision of Rule 6 of the 1969 Rules and the promotion in the Schedule need not be struck down because I am dealing with a position of fresh entrants for whom these different pay scales may very well be applicable on the basis of difference in the academic qualifications the ends of justice will be met if the respondents and directed to give the petitioner the same revised pay scale as has been allowed to other Assistant Directors in the Forensic Science Laboratory under the Police Department
20. In the result, therefore, I allow the writ petition in part and direct the respondents to allow the same revised of pay under the 1969 Rules to the petitioner as has been allowed to other Assistant Directors in the Forensic Science Laboratory under the Police Department with effect from the date such benefit was allowed to others the parties are left to bear their own costs.