Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. The brief facts of the case are that the petitioner was initially appointed under the department of Technical Education in its ITI Wing as Administrator in June, 1971 through study gained in the service. The petitioner was ultimately appointed by promotion to the highest post under the department of Technical Education as Director, Technical Education on 1st Dec, 2000 after regular selection on recommendation of D.P.C. against vacant post of Director for year 2000-01. There is only one post of Director under the Department of Technical Education and the recruitment and promotion to the various posts under technical education service is governed by the Rajasthan Technical Education Rules, 1973.
3. There is no dispute about the fact that petitioner was regularly selected and promoted to highest post under the Rules of 1973 duly and validly. The dispute is about pay scale to which the petitioner is entitled to as holder of the post of Director, Technical Education, after regular selection against a vacant and permanent post.
4. Under Schedule attached with the Rules of 1973, the post of Director is at the helm of pyramidal structure and is to be filled 100% by promotion from the posts enumerated in it which included (i) Joint Director, Polytechnic Wing and (ii) Joint Director, I.T.I. Wing. The qualification prescribed for eligibility to promotion are common for both streams from which the promotions are common for both streams from which the promotions are to be made to the highest post in the department, namely he should have a degree in any branch of Engineering from a University established by law in India or qualification recognised as equivalent to such a degree by the Government and he should have three years' experience on the post mentioned in Column 5 which has been noticed above.
5. It has further been envisaged that while considering the case for promotion to the post of Director from the eligible persons from different Streams, their inter se seniority amongst persons eligible for promotion shall be determined on the basis of length of continuous officiation after regular selection.
6. The aforesaid scheme of the Rules makes it clear that whatever difference in the mode or method of recruitment up to reaching the post of Joint Director either of Polytechnic Wing or ITI Wing of the Technical Education Department, there is no difference in the matter of selection, status and the quality in functions to be discharged by the Director as Head of the Department whether he is from Polytechnic Wing or from ITI Wing. The post of Director, which as noticed above, is a promotional post from Joint Director and as such is not a teaching post.
7. In this connection, it also needs to be noticed that under the Rules of 1973 the post of Principal, Polytechnic College was initially equivalent and inter transferable with the post of Dy. Director until the Rajasthan Civil Services (Revised Pay Scales for Government Polytechnic College Teachers) Rules of 2001 came into force. Under the rules of 2001 referred to above, the pay scales have been provided for the post included in the Rajasthan Technical Education Service Rules, 1973. It may be noticed that apart from the posts on administrative side namely the Assistant Director, Dy. Director, Joint Director and Director, all the posts of Polytechnic College including its Principal has been included in Rajasthan Technical Education Rules, 1973 including the Directors' posts. It is to be filled 100% by promotion. Two separate channels have been provided namely (i) a person holding the post of Joint Director, Polytechnic College (ii) the Joint Director under the Rajasthan Technical Education Service rules, 1973 and another the Joint Director, Industrial Training Institute.
8. It would be relevant here to note that the service of ITI Wing of the Technical Education is governed by the Rajasthan Technical Training Service Rules, 1975 which encaders the various posts in the service and the highest post under the State service is under Rajasthan Technical Training Service Rules, 1975 the post of Joint Director, and apart from the Joint Directors post, no other higher post is encadred under the Rules of 1975.
9. Therefore, the terms and conditions of the post of Director on which the appointment has to be made under the Rules of 1973 alone, there can only be one, and there cannot be, separate pay scale or emoluments provided for the Director on the basis of the different cadre from which the person is ultimately promoted through regular selection against regular vacancy. Selection for promotion from different channels is not separate but only one selection is envisaged from amalgamation of candidates eligible and within the zone of consideration from all feeding channels.
10. This is the reason for which the emoluments for the post of Director or the pay scale prescribed for the post of Director finds place amongst the pay scale rules provided for polytechnic Technical Education which include not only Rules relating to teaching staff only but also of education administrators viz. Dy. Director, Joint Director, and Principal and the Director. Hence, Rules of 1973 are not concerned with teaching staff only. Albeit the post of education administrators and teachers have been interchangeable.
11. Significantly, the rules of 2001 shows that somewhere in between, the post of Principal, Polytechnic College has been upgraded to be equivalent to the post of Joint Director which has earlier been shown to be the equivalent to the post of Dy. Director and the post of Dy. Director is also merged with the post of Joint Director/Principal vide the Rules of 2001 by prescribing a common pay scale for all the three posts.
12. Another factor of significance to be noticed is that before the Rules of 2001 came into force retrospectively w.e.f. 1.9.1996 as per the existing pay scale in Schedule-I for the Director as well as for the Joint Director/Principal has been shown to be identical namely 4500-1500-5700-2000-6300. The only difference is that a person on promotion to the post of Director used to get fixed in the pay scale with a special pay of Rs. 400/- per month. The revised pay scale, approved for the Director, is Rs. 16400-450-20000, with Rs. 600/- special pay. The post of Joint Director/Principal and the merged/re-designated post of Dy. Director are also placed in the revised pay scale of Rs. 16400- 450-20000 but without special pay. Thus, the parity between pay scale admissible to the Director, Joint Director of Polytechnic and Principal of Polytechnic has been maintained in the revised pay scale as was existing prior to the Rules of 2001 and provision for special pay on promotion to the post of Director is also maintained. Appointment of Director is not only a change of posting but is a case of promotion with higher status and responsibility. The special pay for the post Director has been revised upwards to Rs. 600/-.
13. Apparently, the Director being the post under the Rules of 1973 and is held by promotion from either of the streams, no separate pay scale has been provided for depending on the colour of the holder of the post. That is not permissible under the Scheme of Constitution also. Once different streams of promotion is provided for the same post on conditions of eligibility being fulfilled they are treated at par for the purpose of promotion to the highest post under the Rules. No qualitatively or otherwise any difference exist in the responsibilities, functions and status of a person promoted to the post of Director depending on stream from which he has reached the top position. Nor the Rules provide for any preference in the matter of consideration for promotion. After the person is selected and appointed as Director, there cannot be difference in the applicability of emoluments, terms and pay scale in which he is to be fixed on the post for which he has been selected. The pay scale is attached to the post and not to the person and not to the caste or colour of the person depending on the steam from which he reaches there. So also special pay is also attached to the post and not personal to holder of post depending upon his last post. If there were to be any difference, there could not have been a common channel of promotion to the same post. A single post in the department cannot carry two different pay scales and emoluments.
14. Apparently when the petitioner was promoted to the post of Director in the Regular line of promotion under the Rules of 1973 by regular selection, he became entitled to the emoluments of the post then existing or thereafter the revised emoluments attached to the post when the revised pay scales rules came into force.
15. The respondents in the first instance fixed the petitioner, when he was promoted to the post of Director, vide order Annex.3 dated 17.4.2002 in the revised pay scale of 2001 to the minimum of pay scale of promotion post i.e., Rs. 16400/- with Rs. 600/- by way of special pay attached to the post.
16. However, vide order dated Annex.4, the Special Officer, Finance Department, issued instructions to the petitioner that the Rules of 2001 are not applicable to the Director appointed from ITI Wing and he was directed to take action in pursuance of that instruction. The directions were also issued to the Treasury Office.
17. The directions vide Annex.4 were issued on 17th October, 2003 in pursuance of a note prepared by the Principal Finance Secretary dated 17th Dec, 2002. The comments made by the Finance Secretary were attached with the letter dated 17th Oct., 2003 stating that this direction has been issued in anticipation of making amendment in the service Rules for recruitment to the post of Director as is apparent from the comments that in meeting dated 3.10.2002, it was decided in accordance with the change in the pay scale as per the recommendation of AICTE according to which corresponding amendment was also be made in the recruitment Rules.
18. It is on the aforesaid premise that the pay scale applicable to the Director, under the Rules of 2001 was considered to be applicable only if the Director is appointed from the post of Joint Director, Polytechnic Wing or Principal, Polytechnic College. The person promoted from ITI Wing was considered entitled to the emoluments attached to the post of Joint Directors only. Therefore, when the officer holding the post of Joint Director in ITI was found to be eligible for promotion to the post of Director, and so promoted, his emoluments ought to have been separately determined by the Department of General Administration.
19. But under the impugned instructions his status was recognised only as Joint Director despite promotion to the post of Director. One is at a loss to fathom to find reason for treating a person of the same status of feeder post even if his promotion to higher post. Nor learned Counsel for the respondent could provide one.
20. Consequent upon these comments and the letter addressed to the Treasury Officer, the Treasury Officer, Jodhpur returned the bill of salary of the petitioner for preparing a fresh bill in terms of the letter dated 17.10.2003 in the light of comments made by the Principal Secretary, Finance dated 7.12.2002. This was objected to by the petitioner and he returned the bill for clearance to the Treasury Officer vide Annex.7.
21. This objection was responded by the Treasury Officer by saying that the petitioner should not indulge into unnecessary correspondence and he should submit fresh bill in accordance with the directions issued by the Finance Department.
22. Yet another letter was issued by the Dy. Secretary of the Technical Education Department on 29th Jan., 2004 recommending that until the question of pay scale to the Director appointed from the ITI Wing, is decided, the petitioner may be paid in the pay scale applicable to the Joint Director and since the petitioner is being paid the pay scale of Rs. 16400-2000, he may be paid accordingly but undertaking be taken from him that in case the proposed amendments are not approved, he will return the excess amount paid to him. The petitioner objected to this course adopted by the aforesaid letter Annex.8. However, the orders were issued by the Dy. Director in the Technical Department fixing the petitioner in the pay scale applicable to the Joint Director as if he was not promoted to the post of Director by fixing his pay one stage above the pay which he was drawing immediately before 1.12.2000 and permitted him to draw 3100 as personal pay which shall not be eligible for any purpose in the service.
23. This led to filing of this writ petition for seeking following reliefs:
'(a) the Rule 12 of the Rules of 2001 may be declared ultra vires and unconstitutional;
(b) if need be, the letter dated 30.12.1999 (Annex.5) be declared unconstitutional and illegal;
(c) the impugned orders dated 17.10.2003 (Annex.4) and 19.4.2004 (Annex. 10) may kindly be quashed and set aside;
(d) the respondent No. 3 be directed to clear the Bill No. 130 dated 20.11.2003 and Bill No. 134 dated 4.12.2003 and he be further directed to keep on paying the salary to the petitioner in the pay-scale of Rs. 16,500-450-20,000;
(e) the writ petition may kindly be allowed with cost; and
(f) any other order which this Hon'ble Court deems just and proper in the facts and circumstances of the case, may also kindly be passed in the interest of justice in favour of the petitioner.'
24. So far as the present writ petition is concerned, I am of the opinion that it is not required to go into the aspect of the constitutional validity of Rule 12 of the Rules of 2001 for the reason that so far as the petitioner is concerned, he was appointed prior to the commencement of the Rules of 2001 to the post of Director and was entitled to hold the post of Director notwithstanding subsequent amendment in the Rules and to claim the right to emoluments attached to the post of Director, Technical Education, Rajasthan which has vested in him. By making provisions like Rule 12, the petitioner cannot be deprived of his right to hold the post of Director on promotion to which he has been promoted by regular selection under the existing Rules and consequently. So also he cannot be deprived of the emoluments attached to the post.
25. One need not dwell on the principle that the pay scales under the Public Services are attached to the respective posts and are not personal pays depending upon basis of the person who man the post after due selection, the mode of selection to the post remaining the same. Two streams provide sources of recruitment to the post of Director under law. Once the appointment is made to the post of Director, the difference in the pay scale on lower post or qualification of lower post losses the relevance. What is sought to be done in the present case is that despite because the qualification prescribed for promotion to the post of Director is in no way different dependent on the channel from which the person came to be eligible for being considered for appointment to the post of Director whether he holds the post of Joint Director, Polytechnic Wing or Joint Director, ITI Wing, the difference in pay scale and emoluments attached to the higher post is sought to be differentiated by executive fiat, by treating the persons came from ITI Wing as inferior and distinct from polytechnic branch. This step motherly treatment of assumed superiority of color of the skin, if one can draw analogy from British Raj, is impermissible under the constitutional scheme. Members of service of ITI Wing owe no promises, nor the Members of Polytechnic can abusive fervour of white skinned masters. The mandate of Article 16 and 14 is clear that no distinction can be made in attaching the emoluments to the post of Director, dependent on the channel from which the person is promoted by a competitive and joint consideration of all eligible candidates. That being the position, the petitioner has an indefeasible right to emoluments of the post as provided under the Rules which cannot be differentiated.
26. The post of Director being encadered under; the Rules of 1973 the reference to the separate pay scales for the members of service in the Technical Training Centers or the political colleges is wholly irrelevant.
27. Moreso it is incomprehensible that the respondents would refer to some rules to be made in future to alter the scheme of promotion under the Rules of 1973. Such proposed alteration in Rules in future, yet to be born, cannot take away the vested right of a person duly promoted under the existing Rules. They may govern promotions to be made thereafter. The respondents have acted in contravention of Rules and against guarantee of equality before law under Article 14 of the Constitution and equality of opportunity in the matter of employment under Article 16 by attempting to deprive the petitioner of his right to emoluments attached to the post as noticed above which betrays their designs even to tinker with his status as director, highest post by hinting at the change in promotion rules in future and treating his status only as Joint Director.
28. The pay scale is attached to the post of Director and not to the channel from which he has come to be appointed. As on today, only one pay scale with emoluments has been prescribed for the post of Director, that is under the Rules of 2001 and this pay scale with emoluments only has to be provided to the Director irrespective of the fact from which channel the man has been regularly selected and appointed as Director. Therefore, depriving the petitioner both of the right to equal emoluments and equal status as a Director as of right on the jejune ground that he comes from ITI Wing and not from the Polytechnic Colleges suffers from patent and gross violation of right to equality guaranteed under the provisions of Article 14 and right of equality of opportunity in the matter of public employment guaranteed under Article 16 of the Constitution.
29. The impugned letters emanating from the department of Finance withdrawing the fixation of the petitioner's pay and emoluments only, for the pay scale and emoluments that is applicable to the post of Director, Technical Education in Rajasthan on the basis of some inchoate idea of Rules in future and further sanctioning his fixation in pay scale of Joint Director with certain amount of personal pay which will not liable to be considered for any purpose as if a favour is conferred on the petitioner, suffers not only from vice of arbitrariness and unfairness but results in patent breach of fundamental rights of the petitioner guaranteed under Article 14 and 16 of the Constitution which cannot be sustained.
30. It appears that some sort of bias for polytechnic Lecturer or prejudice against ITI teachers has gone into consideration while considering the case of the petitioner for withdrawal of emoluments attached to the post of Director already granted to the petitioner. The decision to award him lesser pay and status merely because he has come from ITI hold him inferior to others, reminds me the discrimination between white and brown babus of the pre-independence days when notwithstanding some brown skinned people were allowed to occupy the seats equal to white skinned but pay difference was maintained. The petitioner is not claiming any status or emoluments under the Rules of 1975 because he has not been promoted as Director under the Rules of 1975 but he is claiming the emoluments to the post held by him under the Rules of 1973 and for which only one pay scale has been provided.
31. 1 have not been referred to any other pay scale attached with the post of Director, Technical Education Rajasthan which depends on the cadre of person who holds the post. Two letters emanating from the Finance Department clearly show that they are on wholly untenable grounds and on the basis of proposed amendments in the Rules of 1975 or the Rules 1973. Perhaps it is envisaged that in future the person from ITI may not be directly promoted to the post of Director but those Rules in future cannot deprive a person who has already been promoted under the existing Rules to the highest post under the Rules of 1973 after due selection. It is clearly an attempt to undo what has been done on the anvil of the existing Rules, on the ground that the same new rules are envisaged to be promulgated in future. Ought one know when such new rules would come into existence and what changes would ultimately emerge, if any.
32. The confusion in the minds of the respondents further is that while on the one hand they say that the petitioner is not entitled to the pay scale prescribed for the post of Director under Rules of 2001 but has made order to extend him the pay at the minimum pay scale attached with the post of Director by granting him personal pay of 3100, after finding difference in his emoluments which will result, if he is fixed in pay scale applicable to the post of Joint Director, ITI, the post he hold prior to promotion and making his fixation in accordance with Rajasthan Service Rules in the said pay scale. Reference to Rule 26 A of the RSR in my opinion, is wholly unwarranted for the purpose of making this exercise.
33. The Rule 26A if at all it helps the petitioner envisaged fixation of pay in the time scale of higher post when a Government servant holding a post in a substantive, temporary or officiating capacity is promoted to a post in the regular line of promotion in his service cadre or department, in a substantive, temporary or officiating capacity. It further says that his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing the actual pay drawn by him in the lower post by one increment at the stage at which pay is drawn. However, it does not envisage that on promotion to the higher post one's pay initially can be fixed in the pay scale applicable to the post from which he has been promoted.
34. It is not in dispute before me that when the case of the petitioner was considered, he was holding the post of Joint Director under the Rules of 1975 and was entitled to be paid in the time scale applicable to the post of Joint Director under the Rules of 1975. Once he is promoted to the next higher post of Director, which is a post under the Rules of 1973, which was not a post under the Rules of 1975, he became entitled to the time scale of pay of the higher post, namely the post of Director. On what pay in the said time scale of pay applicable to the Directors post the petitioner can be fixed, can be viewed with reference to Rule 26 A. But it cannot be looked for the purpose of fixing the petitioner's initial pay in the pay scale applicable to the Joint Director, ITI or pay scale attached with any other post.
35. It being clear that for invoking Rule 26A, one has to first look at the time scale of pay applicable to the higher post to which the petitioner has been substantially appointed by promotion. The order Annex. 10 refers to the pay scale of 16,400 to 20,000 as the time scale of pay attached with the post of Director. There is no question of fixing the petitioner's initial pay at any amount lesser than the minimum of pay scale attached with the post of Director namely Rs. 16,400/- to 20,000/- in terms of Rule 26A also. The special pay is also attached to the post of Director, which is not dependent on the qualification which the incumbent holds nor it depends on the post which he held prior to promotion.
36. In view thereof, I have no hesitation in coming to the conclusion that initial fixation of pay of the petitioner in the time scale of the Director's pay vide order annex.3 had correctly been made and subsequent orders or the comments emanating from the Finance Department attempting to withdraw that pay scale or to reduce the petitioner's status as equivalent to the Joint Directors post proposed as projected under the Rules still to be framed cannot be sustained.
37. Consequently, the writ petition is allowed, the impugned orders dated 17.10.2003 (Annex.4), dated 29.1.2004 (Annex.8) and 19.4.2004 (Annex.10) are quashed and the petitioner should be paid his emoluments regularly as has been determined by Annex.3.
38. No orders as to costs.