Ram Nath Hota vs The State Of Jharkhand Through The ...
2023 Latest Caselaw 875 Jhar

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P. (S) No. 4424 of 2015
Ram Nath Hota, son of Sri Gopal Charan Hota, resident of Village -
Govindpur, P.O. & P.S.- Saraikela- District- Saraikela-Kharswan.
                                            ...       ...         ...      Petitioner
                          Versus
1. The State of Jharkhand through the Secretary/Principal Secretary,
   Human Resource Development Department, Government of
   Jharkhand, having office at M.D.I. Building, near Project Bhawan,
   Dhurwa, P.O. & P.S.- Dhurwa, Town and District - Ranchi.
2. The Director, Second Education, having office at Secondary
   Education Directorate, M.D.I. Building, near Project Bhawan, P.O. &
   P.S.- Dhurwa, Town and District - Ranchi.
3. District Education Officer, Saraikela-Kharswan, having office at
   P.O., P.S. & District- Saraikela-Kharswan.
                                        ...         ...         ...         Respondents
                       ---------

CORAM:              HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                       ---------
For the Petitioner:    M/s. Manoj Tandon, Neha Bhardwaj, Adamya
                       Kerketta, Advocates

For the Respondents: Mr. Suresh Kumar, SC(L&C)-II

---------

09/Dated: 23.02.2023

Upon hearing the learned counsel for the parties, this Court

passed the following order, (Per. S. K. Mishra, C.J.).

1. By filing this writ petition, the petitioner has prayed for issuance of

writ of mandamus commanding the respondents to grant Grade

Pay of Rs.4600/- to the petitioner suitably modifying the order

contained in Memo No.11/Ni.1-2/2014/2494 dated 29.07.2015

issued by respondent No.2 which, according to the petitioner, is

discriminatory and violative of Article 14 of the Constitution of India

as a different pay scale has been laid down for Trained Graduate

Teachers of other streams in the same notification.

By amendment as per the order dated 21.11.2016, a further

prayer has been added to declare sub-rule (4) of Rule 2 (to the

extent it relates to pay scale) of the Jharkhand Nationalised

Secondary School (Service Conditions) Rules, 2004 ultra vires the

Constitution of India and to quash and set aside the same.

2. Facts of the case are that the petitioner has passed matriculation

and has also obtained a graduate degree in Music. The petitioner is

also possessing a Post Grade Degree in the stream of English. He

has received training from 'Praacheen Kala Kendra' and has been

conferred with 'Sangeet Visharad', which is equivalent to a degree.

An advertisement was issued by the Jharkhand Academic

Council, Ranchi on 11.10.2011 for appointment of post of Assistant

Teacher in the newly upgraded secondary schools in the State of

Jharkhand in various subjects including 'Sangeet'.

The petitioner applied for being appointed as an Assistant

Teacher in the subject of 'Sangeet'. After a selection process he

was appointed as an Assistant Teacher, however, his pay was fixed

at Rs.4500-125-7000/-.

Initially, the writ petitioner filed this application under

Article 226 of the Constitution of India which came for hearing

before a learned Single Judge, but after filing of counter affidavit the

petitioner sought amendment of the prayer and challenged the vires

of the Rules contained in notification dated 5th of November, 2004

stating that he has been discriminated in the sense that for

Assistant Teacher, Physical Education, the entry level pay scale is

Rs.5500-175-9000/-. This, according to the petitioner, is

discriminatory and in the teeth of the principle of equality as

enshrined under Article 14 of the Constitution of India.

3. Counter affidavit has been filed by the respondents which states

that difference in pay scale has been done because B. Ed.

Education is not essential for the post of Music Teacher. It is the

specific case of the respondents that Assistant Teacher (Music) is

not at par with that of Assistant Teacher of other subject. The

qualification of Assistant Teacher other than Music subject is

Bachelor Degree from recognized university with second division

along with Bachelor of Education whereas for the post of Assistant

Teacher (Music), the basic qualification is matriculation with degree

in music.

4. The learned counsel for the petitioner would rely upon the reported

case of the State of Punjab and others Vs. Senior Vocational

Staff Masters Association and others (2017) 9 SCC 379, in

which the Hon'ble Supreme Court has laid down principle that

unequal treatment in the same service which was created in a

common process of selection cannot be allowed to be made. It is

appropriate to take the exact words used by the Hon'ble Supreme

Court in the aforesaid case which are quoted below:-

"24. It is evident that at the time of initial appointment, both the

degree-holders and the diploma-holders were appointed by a

common process of selection where for the engineering trade a

degree was required and for the non-engineering trade a diploma

was considered as the appropriate qualification. A common

advertisement was issued and a common process of selection led to

the appointment of all persons who were designated as Vocational

Masters. They were appointed on a pay scale higher than the general

lecturers. They continued to draw a higher scale till the year 1978

when the pay scale of the general lecturers was brought on a par with

the pay scale of the Vocational Masters. It is only in the year 1995

that an effort was made by the State Government to create a

distinction between the degree-holders as Vocational Lecturers and

diploma-holders as Vocational Masters.

25. Further, since the very inception, the educational qualification for

appointment as Vocational Masters had been a degree or a diploma

with three years' experience as both the qualifications were placed

on a par. All persons were appointed by a common process of

selection and they teach the same classes, performing the same work.

No distinction can be brought about between the persons so

appointed. It is only subsequently that the appellants designated some

of the Vocational Masters as Vocational Lecturers and brought about

an artificial distinction between the two. Even on account of

redesignation of the degree-holders and postgraduates as Vocational

Lecturers, there was no change in the responsibilities and the

financial matters as between the degree-holders and diploma-holders

before the alleged notification which fact is duly admitted by the

State. There is no distinction between the Vocational Lecturers and

Vocational Masters and they form one unified cadre and class. There

cannot be any discrimination between similarly situated persons,

whether by way of a government notification or any amendment in

the Rules. As far as nature of work is concerned, it is stated that the

Vocational Masters are discharging their duty in the Senior

Secondary Schools in the engineering/non-engineering trades and

have the technical qualifications while the Vocational Lecturers are

also discharging the same duties in the same schools. Both

Vocational Masters and Lecturers are teaching the same classes i.e.

10 + 1 and 10 + 2 and hence the nature of work, responsibilities and

duties being identical and the pay scales were also kept identical

since 1978 onwards.

26. The principle of equality is also fundamental in formulation of

any policy by the State and the glimpse of the same can be found in

Articles 38, 39, 39-A, 43 and 46 embodied in Part IV of the

Constitution of India. These Articles of the Constitution of India

mandate that the State is under a constitutional obligation to assure a

social order providing justice-social, economic and political, by inter

alia, minimising monetary inequalities, and by securing the right to

adequate means of livelihood and by providing for adequate wages so

as to ensure, an appropriate standard of life, and by promoting

economic interests of the weaker sections. Meaning thereby, if the

State is giving some economic benefits to one class while denying the

same to other then the onus of justifying the same lies on the State

specially in the circumstances when both the classes or group of

persons were treated as same in the past by the State. Since

Vocational Masters had been drawing same salary as Vocational

Lecturers were drawing before the application of the 4th Pay

Commission, any attempt to curtail their salary and allowances

would amount to arbitrariness which cannot be sustained in the eye

of the law if no reasonable justification is offered for the same.

27. We are conscious of the fact that a differential scale on the basis

of educational qualifications and the nature of duties is permissible.

However, it is equally clear to us that if two categories of employees

are treated as equal initially, they should continue to be so treated

unless a different treatment is justified by some cogent reasons. In a

case where the nature of duties is drastically altered, a differential

scale of pay may be justified. Similarly, if a higher qualification is

prescribed for a particular post, a higher scale of pay may be

granted. However, if the basic qualifications and the job

requirements continued to be identical as they were initially laid

down, then the Court shall be reluctant to accept the action of the

authority in according a differential treatment unless some good

reasons are disclosed. Thus, the decisions relied upon by the learned

Senior Counsel are clearly distinguishable and are not applicable to

the facts of the present case."

5. However, reading of the aforesaid judgment reveals the facts of the

case are totally different. In a reported case cited above, in a

selection process, teachers were appointed who were termed as

'Vocational Masters' and the minimum qualification for applying

such posts was Degree in Engineering or Diploma in Engineering

with three years of work experience. After completion of the

selection process the candidates belonging to both the aforesaid

qualifications were given the same duty. However, thereafter, the

State of Punjab crated another cadre and termed it as 'Vocational

Teachers' and granted them additional finance benefit which was

challenged by the Association of Vocational Staff Masters and the

Hon'ble Supreme Court held that they cannot be treated unequally

and confirmed the order passed by the High Court of Punjab &

Haryana by observing that it is a violation of Article 14 of the

Constitution of India. However, in this case, the writ petitioner

applied for a post for which the minimum qualification is

matriculation and with a bachelor degree in Music. For better

appreciation, the relevant clauses of the impugned notification are

quoted as under:-

"4.(2) (I) 'kkjhfjd f'k{kk f'k{kd:-

'kjhfjd f'k{kk f'k{kd (izoj.k osrueku) 7500-250-12000 'kjhfjd f'k{kk f'k{kd ojh; osrueku 6500-200-10500 'kjhfjd f'k{kk f'k{kd ewy dksfV osrueku 5500-175-9000 (II) jkT; ljdkj vFkok dsUnz ljdkj }kjk LFkkfir fo'ofo|ky; ls dyk] foKku vFkok okf.kT; esa f}rh; Js.kh esa Lukrd fMxzhA (III) jkT; ljdkj vFkok dsUnz ljdkj }kjk LFkkfir fo'ofo|ky; lfefr }kjk LFkkfir fdlh fo'ofo|ky; ;k jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj f'k{kk foHkkx }kjk iznr 'kkjhfjd f'k{kk fMxzh ;k fMIyksek ;k ,u0 lh0 Vh0 bZ0 ls ekU;rk izkIr fdlh laLFkku ls 'kkjhfjd f'k{kk esa fMIyksekA "4. (3) (I) izkP; Hkk"kk f'k{kd

d) jkT; ljdkj vFkok dsUnz ljdkj }kjk LFkkfir fo'ofo|ky; lfefr iznr vkpk;Z (lkfgR; vFkok O;kdj.k) Qkfty (vjch vFkok mnwZ] Qkjlh) dh fMxzh vFkok laLd`r] Qkjlh] mnwZ] vjch Hkk"kk esa ,e0 ,0A [k) ,sls mEehnokjksa ds fy, Hkh jkT; ljdkj / dsUnz ljdkj / jk"V~zh; v?;kid f'k{kk ifj"kn~ }kjk ekU;rk izkIr laLFkku ls ch0 ,M0 dh fMxzh izkIr djuk vfuok;Z gksxkA "4. (4) (I) laxhr f'k{kd Laxhr f'k{kd (izoj.k osrueku) 6500-200-10500 Laxhr f'k{kd ojh; osrueku 5500-175-9000 Laxhr f'k{kd ewy dksfV osrueku 4500-125-7000 (II) jkT; ljdkj vFkok dsUnz ljdkj }kjk LFkkfir fo'ofo|ky; vFkok cksMZ ls izosf'kdk (eSfV~zd) ijh{kksrh.kZA (III) jkT; ljdkj vFkok dsUnz ljdkj }kjk LFkkfir fo'ofo|ky; ls laxhr esa Lukrd fMxzh vFkok led{k ;ksX;rkA (IV) ;s lHkh in lh/kh fu;qfDr ls Hkjs tk;saxAs "

6. Bare reading of the aforesaid clauses reveals that as far as

Physical Education Teachers are concerned, the minimum

educational qualification is Graduation and either a degree or a

Diploma in Physical Education, whereas as far as Assistant

Teacher of Music is concerned, the minimum qualification is

Matriculation plus Graduation in Music. Thus, we are of the view

that the classifications of the two teachers are different and they are

expected to give different types of jobs and impart different kinds of

educations also. Moreover, in the aforesaid judgment at para-37,

the Hon'ble Supreme Court has categorically held that it is

conscious of the fact that a differential scale on the basis of

educational qualification and nature of duty is permissible. In this

view of the matter, this Court is of the opinion that there is no

discrimination in this case.

7. The other salient feature of this case is that the petitioner has been

selected under the notification he has challenged. He participated in

the selection process and then after being selected and appointed

as an Assistant Teacher (Music), he has challenged the very

notification under which he has been selected. Such a stand is not

permissible. In that view of the matter, this Court finds no merit in

the writ application which is dismissed accordingly.

8. No order as to costs.

9. Urgent copies as per Rules.

(S. K. Mishra, C.J.)

(Sujit Narayan Prasad, J.) A.F.R.

Manoj/-