K.D. Sharma, J.
1. D.B. Civil Special Appeal No. 148/1979 filed by the State of Rajasthan & others under Section 18 of the Rajasthan High Court Ordinance has been directed against the judgment of the learned single Judge of this Court dated 24th September, 1979 which he passed in S.B. Civil Writ Petition No. 825 of 1978 Maqbool Ahmed v. The State of Rajasthan and Ors. and whereby the order marked Anexure 2 dated 24th October, 1978 was quashed and it was declared that Maqbool Ahmed petitioner is entitled to get his pay fixed in the pay scale of Rs. 180-425 on the post of foreman grade I and accordingly his pay shall be so fixed.
2. The relevant facts giving rise to the writ petition out of which this special appeal arises may be briefly stated as follows: Maqbool Ahmed petitioner was appointed on the post of mechanic grade II on 22-12-1954. Thereafter he was promoted to the post of mechanic grade I on 1-3-1956 and was latter on promoted on a temporary basis to the post of foreman grade I vide order dated 7-3-1975. Aggrieved by this order of his promotion on a temporary basis to the post of foreman grade I the petitioner filed a writ petition in Court, wherein it was prayed that he should be substantively appointed to the post of foreman grade I with effect from the date on which persons junior to him such as Shri Premsingh and Shri Gheesalal were so appointed. Thereafter by order dated 21st July, 1975 the petitioner was fixed in pay scale of Rs. 180-10-220-15-385-20-425 with effect from 29-3-1975 with a basic salary of Rs. 265/- per month as is evident from Annexure I. Then on 24-10-1978 an order was passed that the petitioner's fixation in pay scale of Rs. 180-425 was wrong as he did not possess the requisite qualifications laid down by the Government in its notification dated 20-2-70. The effect of this order was that the petitioner was ordered to be fixed in pay scale of Rs. 150-330 with basic salary at Rs. 255/- per month and the over payment of Rs. 850/-made to him was ordered to be recovered from him by deducting 1/3 amount of his salary from October, 1978, and he was ordered to be paid Rs. 690/- per month in the pay scale of Rs. 440-470. This order is marked Annexure 2. It contained a statement of deductions also and it was passed on the basis of the Rajasthan Civil Services New Pay Scale Amendment Rules 1970 hereinafter referred to as the Amendment Rules 1970 which were made effective since 1-9-1968. Aggrieved by the amendment Rules 1970 and the order marked Annexure 2 dated 24th October, 1978 the petitioner has filed this writ petition out of which this special appeal has arisen. The writ petition was admitted and notices were given to the State of Rajasthan and other respondents. The respondents contested the writ petition and filed reply thereto on 24th January, 1979. After the reply was filed the petitioner sought permission to amend the writ petition which was accorded to him. The petition filed the amended writ petition to which no reply was given by the respondents. In reply to the writ petition before it was amended the respondents Nos. 1 to 3 alleged that the petitioner was wrongly fixed in the pay scale of Rs. 180-425 with effect from 29-3-1975 with basic salary at Rs. 265/- by an order of the State Health Transport Officer under the mistaken relief that he possessed the requisite qualifications for fixation in the pay scale of Rs. 180-425. It was further urged in the written reply that the petitioner was entitled to be fixed in the lower pay scale of Rs. 150-330 because Diploma holders in automobiles alone could have been fixed in the aforesaid pay scale and as the petitioner had not obtained any Diploma in automobile (Engineering) the mistake was rectified by the respondents when it was pointed out by the audit in 1978 vide order dated 24-10-1978 marked Annexure Ex. RII. As regards the allegation, that the petitioner was discriminated in this matter and persons, namely, Gheesalal and Premsingh who were junior to him in the same cadre were fixed in the pay scale of Rs. 180-425, the respondents Nos. 1 to 3 replied that Gheesalal and Prem Singh also were wrongly fixed in the aforesaid grade and when the mistake was pointed out by the audit steps for making recoveries from their salary have already been taken as is evident from orders marked Annexure Ex. Rule III and Ex. Rule IV and so there is no discrimination between the petitioner and the two persons, namely, Gheesalal and Prem Singh.
3. The learned single Judge of this Court heard the writ petition filed by the petitioner and while relying on two authorities of this Court P.C. Puri v. State of Rajasthan reported in 1975 Weekly Law Notes (Unreported cases) 22 and Maniram Rakhecha v. State of Rajasthan S.B. Civil Writ Petition No. 1725 of 1975 decided on December 22,1978 came to a conclusion that the observations made in F.C. Puri's case were fully applicable to the instant case and the petitioner was, therefore, entitled to get his pay fixed in the pay scale of Rs. 180-425 on the post of foreman grade I and his pay shall be so fixed and the order marked Annexure 2 dated October 24, 1978 is quashed. However, it was not thought necessary to strike down Rules of 1970 and 1977 as violate of Articles 14 and 16 of the Constitution. As stated above the State of Rajasthan and others have challenged this order of the learned single Judge by way of this special appeal.
4. We have perused the record and heard Mr. H.N. Calla Deputy Government Advocate for the appellants and Mr. M. Mridul learned Counsel for the respondents. The following contentions have been raised before us by Mr. H.N. Calla Deputy Government Advocate for the appellants:
(1) That the referred to above two authorities of this Court on which the judgment of the learned single Judge is passed were not applicable to the facts and circumstances of the instant case.(2) That in F.C. Puri's case (1975 Weekly Law Notes (Unreported Cases) 22, this Court did not hold that the Rules prescribing different pay scales on the basis of higher qualifications at the time of initial appointment were violative of the Articles 14 and 16 of the Constitution of India and so the learned single Judge was not justified in holding that different pay scale for persons employed in the same cadre cannot be prescribed on the basis of academic qualifications.
(3) There is rational and reasonable nexus for providing the higher pay scale on the basis of higher academic qualifications because such qualifications have relevance to efficient discharge of duties. Hence without striking down the Rules prescribing different pay scales as violative of Articles 14 and 16 of the Constitution of India, the learned single Judge of this Court committed an error in directing that the petitioner be fixed in higher pay scale inspite of the fact that the did not possess requisite qualifications for such fixation.
5. Mr. Marudhar Mridul, learned Counsel for the Department on the other hand contended that once the State Government appointed the petitioner and other persons having different academic qualifications in the same cadre with the same pay scale, any subsequent differentiation between such employees on the basis of their academic qualifications was not permissible in the matter of their pay scales because they formed a single unit of employment and so the petitioner was entitled to have his pay fixed in the higher pay scale as rightly held by the learned single Judge of this Court on the basis of the referred to above two authorities of this Court.
6. We have given our earnest consideration to the rival contentions.
7. The important question that requires determination in this appeal is whether fixation of different pay scales for Foreman Grade II having Diploma in Automobile Engineering from a recognised institution with two years practical experience and for Foremen Grade I who have not technical qualification but have practical experience of 7 years is arbitrary and violative of Articles 14 & 16 of the Constitution. While considering this question we may observe that according to Rajasthan Medical and Health Subordinate Rules 1965 as amended by Rajasthan Medical and Health Subordinate Service Amendment Rules 1973 appointment to the post of Foreman Grade I was to be made by promotion only from the posts of mechanic grade II foreman grade II and fitter grade I and the minimum qualification required for such promotion was five years experience n any of the aforesaid posts. Possession of diploma in electrical-mechanical-civil automobile Engineering was not an essential qualification for appointment to the post of foreman grade I by promotion. Hence persons including the respondent who were promoted to the post of foremen Grade I from the post of mechanic grade I foreman grade II and fitter grade I were merged in one cadre and there was no distinction between them on the basis of their academic qualifications so far as their initial appointment on the post of foreman grade I by promotion was concerned. There was also no difference in the nature of the functions and duties discharged by foreman grade I possessing Diploma in Automobile Engineering with two years practical experience and Foreman Grade I who have no technical qualification but have practical experience of 7 years. Having in view these considerations we are of the view that it was not permissible to the appellants to fix different pay scales for Diploma holders in Automobile Engineering with two years practical experience and persons who have no technical qualification but possess practical experience of 7 years because no discrimination could be made in the matter of pay scales when for the purpose of promotion to the post of foreman grade I no distinction was made between them on the basis of academic qualifications. It appears that by the order dated 7-3-1975 the respondent was promoted to the post of foreman grade I of course on a temporary basis and by another order dated 21st July 1975 he was fixed in pay scale of Rs. 180-425 with effect from 29-3-1975 with basic salary at Rs. 265/- per month as is evident from order marked Annexure I but later on by an order dated 24-10-1978 he was fixed in lower pay scale of Rs. 150-330 with his basic pay at Rs. 255/- per month on account of having no diploma in Automobile Engineering from a recognised institution with two years practical experience. The subsequent order fixing the respondent in the lower pay scale of Rs. 150-330 was made on the basis of the Rajasthan Civil Services (New Pay Scales Amendment) Rules 1970 hereinafter referred to the Amendment Rules 1970 as is obvious from notification marked Ex. Rule 1 because as required by these Rules the Respondent has no technical qualification but has practical experience of 7 years and the pay scale admissible to him was 150-330. We are therefore of the view that the learned single Judge of this Court committed no error in quashing the impugned order marked Annexure II dated 24th October, 1978 and in holding that the respondent is entitled to get his pay fixed in the pay scale of Rs. 180-425 and that his pay shall be so fixed because distinction made on the basis of academic qualification for purpose of pay scales was discriminatory as persons including the respondent were initially promoted to the same grade of Foreman grade I from the post of Mechanic Grade I/Foreman grade II and Fitter Grade II and Fitter Grade I and formed a single unit of employment Consequently the appeal filed by the State has no force and is hereby by dismissed. No order as to costs in the circumstances of this case.