Lekh Raj Bowry and Others vs The Punjab State and Another

P.C. Pandit, J.—This order will dispose of two connected writ petitions (Civil Writ No. 2072 of 1964-Lekh Raj Bowry and others v. The Punjab State and another-and Civil Writ No. 2260 of 1964-Amrit Lal and another v. The State of Pnnjab). Counsel for the parties are agreed that the decision in the first writ petition will govern the other writ also. I would, therefore, give the facts of Lekh Raj Bowry''s case.

The petitioners and other vaidyas arid Hakims, who are 410 in number, were originally employed in various States, like Nabha, Sangrur, Patiala and Punjab, on different scales of pay. Subsequently, in the integrated State of Punjab, they were all put in a joint cadre in the year 1956 and were allowed pay scale of Rs. 80-5-105/3-135/7 - 170. According to the petitioners, they were all appointed on the same condition- of service and the nature of their duties and their designation were also the same. On 23rd of August 1963 the Governor of Punjab, in exercise of the powers conferred by the proviso to Article 309 of the Constitution framed rules, called the Punjab Ayurvedic Department (Class III -Technical) Service Rules, 1963 (hereinafter called the rules), regulating the recruitment and the conditions of service of persons appointed to the above mentioned Service. These rules were published in the Punjab Government Gazette, Legislative Supplement Ordinary, dated 6th of September, 1983. Rule 6 of these rules provided that no person shall be recruited to this Service by direct appointment, unless he possessed such qualifications as were shown in column 4 of Appendix ''A''. The qualifications for recruitment as Vaidyas, as shown in column 4 of Appendix ''A'', were "a diploma or degree in Ayurveda of any recognized University or Board of Indian System of Medicine established by law in India or any teaching institution recognized by Government", while those for recruitment as Hakims were "a degree or diploma in Unani Tibb of any recognized University or Board or any teaching institution recognized by Government." According to rule 8 all appointments to the Service had to be made "in the case of Senior Lecturers, Junior Lecturers, Assistant Professors, Vaidas, Hakims, and Up-Vaidyas, fifty per cent by promotion from amongst the members of the Service, provided the persons to be promoted possess the qualifications specified in column 4 of Appendix ''A'', and fifty per cent by direct appointment through the Commission or the Board, as the case may be." Under rule 10, the seniority inter se of the members of the Service had to be determed by the dates of their continuous appointments in the Service. According to rule 13, a member of the Service on appointment was entitled to the pay-scale as shown in Appendix ''A'' or such scales as may be authorized by Government from time to time. In the Appendix the scales of pay of the Vaidyas and the Hakims were the same, namely, Rs. 80-5-"105/5- 135/7-170. According to the petitioners all the members of this cadre were given the same pay-scale whether they had passed the course in five years, four years or three years from recognized or private institutions On 7th of October 1963 the Punjab Government revised the pay scales of the Vaidyas (teaching staff) from Rs. 80-170 to Rs. 150-10-200/15-275/15-380 subject to the condition that the incumbent should possess five years'' degree, vide Annexure ''A'' to the writ petition. Thereupon, Lekh Raj Bowry, petitioner No. 1, who is the General Secretary of Punjab Vaidyas and Hakims (State Employees) Association, submitted a representation on 18th of November, 1963 to the Director, Health Services, Punjab, respondent No. 2. in which it was stated that there was no difference between the Vaidyas who graduated after doing four years or five years'' course. The course of studies which was taught in four years had been extended to five years. There was thus no justification for making this distinction between Vaidyas having five years'' degree and those possessing four years'' degree. On 17th of December, 1963 petitioner No. 1 was informed by respondent No. 2 that the representation made by him was under consideration. On 18th of February, 1964 the revision of pay-scale sanctioned on 7th of October, 1963 was also made applicable by the Government to the Vaidyas and Hakims posted in the dispensaries or anywhere in the Department, provided they held five years'' degree, vide Annexure ''A-l'' to the writ petition. It was also provided that the revised scale would be admissible from the date of the original order, i.e., 7th of October, 1963. On 21st of July, 1964 the Government raised the pay-scales of Vaidyas and Hakims with three and four years degree course from Rs. 80-5-105/ft- 135/7-170 to-(i) Rs. 100-8-220/10-250 (for three years'' degree course); and (ii) Rs. 120-8-200/10-300 (for four years'' degree course), with effect from the date of issue of these orders, vide Aunexure ''K'' to the writ petition. On 19th of September, 1964 petitioner No 1 received a communication from respondent No. 2 informing him of the decision of the Government, dated 21st of July, 1964. This led to the riling of the present writ petition on 28th of September, 1964.

The case of the Government, as given in the return, was that the question of the revision of the grade of Vaidyas and Hakims was under the consideration of the Government since a long time. Even after the revision of the grade there had been no bifurcation of the cadre, but only higher grade of pay was given to better qualified persons without disturbing their service conditions seniority or promotion in any way. The intention was to allow the revised scale of Rs. 150-380 to Vaidyas holdings (sic) years'' degree, irrespective of the place of their posting. It was not possible to admit that there was no difference at all in the standard of five years and four years'' course. Even otherwise the cost of studies in terms of time and money as well as talents and experience in the case of five years'' degree holders was decidedly more than those with four years qualifications. By the impugned notifications, the seniority, promotion or other service conditions of the cadre had not been affected in any way. The intention was to get more qualified persons by providing a higher scale, but while doing so due consideration was also shown to those who were taken into service previously with leaser/inferior qualifications. Under rule 13 of the Rules, the Government was competent to give better pay scales to more qualified persons. This revision of grades would not affect the seniority of the members of the Service, because according to rule 10 of the Rules seniority inter se was to be determined by the dates of their continuous appointments in the Service. No classification in the cadre had been made. The higher scale had been prescribed to attract and compensate better qualified persons. The five years course had been introduced to improve the standard of training. Besides, there might still be institutions in India running three years and four years courses and if the same scale was allowed for all classes of degree/diplomas, people would prefer to under go shorter courses. The distinction between less qualified and more qualified persons cannot be helped.

Learned counsel submitted that the petitioners who are four years degree holders, were placed in a uniform cadre with the same scale of pay in 1956. At that time no distinction was made by the Government regarding the number of years put in by the Vaidyas or the Hakims in obtaining the diploma or degree. After their appointment, their conditions of service cannot be changed. All the Vaidyas and the Hakims had to be treated equally The division of the cadre into various categories contravened the provisions of Articles 14 and 16 of the Constitution. The impugned notifications were discriminatory in nature and liable to be struck down on that ground, because all the 416 Vaidyas and Hakims, who were put in the same cadre, were doing the same type of work They were having the same rank and formed a single unit of employment.

On the other hand, the contention of the learned counsel for the respondents was that by the impugned notification the Government had not bifurcated the joint cadre in which 416 Vaidyas and Hakims had been put in 1956. In order to attract better qualified persons the Government had to make these changes in the grades. There was no doubt that they had made a distinction between Vaidyas and Hakims holding three years, four years and five years degrees, and that is why these different categories had to be made. But by doing so, the inter se seniority of the members of the Service was not affected. Initially, Vaidyas and Hakims possessing all sorts of degrees had been "jumbled together and that initial discrimination was being removed by making these different categories which had a rational basis". Since there was a reasonable basis for this classification, the impugned notifications were not hit by Articles 14 and 16 of the Constitution. The petitioners could improve their qualifications by doing the condensed courses of one and one and a half years duration prevalent in some institutions and thus become entitled to the higher grade. There was, therefore, equality of opportunity for all the members of the Service.

It is conceded by the counsel for the parties that there is no direct authority on the point in controversy in the present case except a Single Bench decision of D. Basu J. in Aswini Kumar Rath v. Director, of Public Instruction Government of West Bengal (1965) II F.L.R. 163, for counsel the State, however, pointed out that in Aswini Kumar Rath''s case1 all the petitioners had applied in response to one advertisement issued by the Director of Public Instruction, whereas in the instant case 416 Vaidyas and Hakims were originally employed in a number of States on different dates and on dissimilar scales of pay. But in my opinion this circumstance would not make a difference when in 1956 all these 416 persons, after the integration of Pepsu and Punjab States, were placed in one joint cadre with the same scale of pay and same conditions of service. In the above mentioned Aswini Kumar Rath''s case1, the facts were as follows. In June, 1954 or thereabout, the Director of Public Instruction invited applications for the posts of Sub-Inspectors of Schools in the pay scale of Rs. 100-5-215 -10-225 from persons possessing a Bachelor''s degree in the minimum, with a degree or diploma in teaching. The case of the petitioners, who were ordinary graduates, was that in pursuance of this advertisement candidates having Pass as well as Honours B. A. and B. Sc. degree and M. A. and M. Sc. degrees applied and were appointed to these posts in the same pay scale as announced, without making any distinction between ordinary Graduates and those possessing higher academic distinctions. They were all placed in the same rank having the same duties. Subsequent to this appointment, the Government of West Bengal issued the impugned order on July 20/21, 1959. By this order with a view to attracting "people with good academic qualifications" to the cadre of Sub-Inspectors of Schools, the pay of those Sub-Inspectors who were Honours Graduates or held a Master''s degree was raised to a higher scale of Rs. 130-5-150-10- 350, and this order was given retrospective effect from April 1, 1959, and the benefit was extended to those existing Sub-Inspectors who had been appointed since 1951, provided they possessed the higher qualifications mentioned and it was ordered that the existing office''s should be classified into two classes, that is, those entitled to the lower scale and those entitled to the higher scale, according to the aforesaid qualifications. Subsequently, by an order dated January 2, 1962, Government framed a rule by which the pay scale of Sub-Inspectors of Schools was revised. This rule was given effect from April 1, 1961. This revised scale had divided Sub-Inspectors into two classes viz. Trained Graduates in Arts and Science Rs. 175-325 and Trained Graduates with Honours Degree or Master''s degree Rs. 225 - 475. The petitioners thereupon filed an application under Article 226 of the Constitution alleging discrimination between ordinary Graduates on the one hand and Honours Graduates and Post-Graduates on the other. Their case was that by the increase of pay in the revised scale there had been immediate improvement in their lot but their grievance was that discrimination had been aggravated. They had been discriminated against by the impugned order of 1959 as modified by the order of 1962 by the introduction of different scales of pay for officers of "the same rank and same cadre" and having the same duties without any justification. They, accordingly, claimed that the Government should be directed to treat them at par for the purpose of given them the pay scale of Rs. 130-350 from April 1, 1959, and the revised pay scale of Rs. 225 -475 with effect from April, 1961, after quashing the impugned others as being violative of Articles 14 and 16 of the Constitution. The case of the Government was that the higher emoluments had been offered to better qualified Sub-Inspectors of Schools in order to attract better talents to the Service and to have more onerous tasks performed by such better qualified persons.

After examining a number of Supreme Court decisions,

D. Basu J. held thus-

In the case before me, there is not the least doubt that the M. A''s. and Honours Graduates who were appointed along with the petitioners (Pass Graduates) in pursuance of the announcement in Annexure A were recruited to the same grade and rank of Sub-Inspectors of Schools, with the same pay scale, i.e., Rs. 100/- to 225/-, irrespective of any difference of their individual qualifications (vide paragraph 4 of the counter-affidavit). They formed ''a single unit of employment''. The subsequent differentiation on the basis of qualification, in the matter of pay, as between members of this same unit must, accordingly, be struck down as violative of Article 16(1), at the instance of the petitioners who have been discriminated against. The plea of the Government that there was a natural class division as between the less qualified and the higher qualified members of the Sub-Inspectors of Schools is not tenable inasmuch as in making the announcement in Annexure A and in appointing the petitioners on the basis thereof, the Government did not treat the lesser qualified and the higher qualified as belonging to two different classes but treated them alike.

The case made in the counter-affidavit was that the Honours Graduates and M.A''s. were being given higher pay for doing duties involving greater responsibilities and not for doing the same work like other Sub Inspector''s (Paragraph 11), and that that work of a more onerous nature was being called for owing to the introduction of the National plan in the sphere of education (paragraph 5). But this case has completely broken down at the hearing since the contents of Annexures E, F and J to the affidavit-in-reply, that the members of the two new cadres are still treated as interchangeable in the matter of posting and transfer go uncontradicted and Pass Graduates like the petitioners are still being engaged in the same posts and duties as before. It is abundantly clear that so far as the existing employees are concerned, no rational basis for classification exists to justify the differentiation made by Annexure B, with retrospective effect, so as to effect the petitioners who were recruited on the same terms as the Honours Graduates and the M.A''s. Annexure B is thus hit by Article 14 also, in so far as it is given retrospective effect, to effect the petitioners.

I am in respectful agreement with the rule of law laid down in the above mentioned authority. I would, therefore, accept this writ petition and issue a writ in the nature of mandamus directing the respondents not to enforce the revised scales of pay in such manner as to subject the petitioners to a lower scale of pay than the one allowed to the Vaidyas and Hakims with five years'' degrees. In the circumstances of the case, there will be no order as to costs.

Petition allowed.