Narendra Kumar Singh Yadav and Others vs State of U.P.

B.S. Chauhan and Arun Tandon, JJ.—Petitioners, who are nine in number, were appointed as Librarian in various Degree Colleges affiliated to Veer Bahadur Singh Purvanchal University, Jaunpur between the year 1973 to 1987. The pay-scales admissible to the post of Librarian in various Degree Colleges were classified having regard to the strength of students and qualifications of the incumbent. Different pay-scales were provided for such categories of post.

For ready reference, it may De Ported out that a Librarian working in the institution where the strength of the students was more than 2000, the pay-scale admissible was Rs. 1000-1900 for ''A'' category of the institution. In respect of ''B'' category Degree Colleges, pay-scale admissible was Rs. 690-1420. Similarly in respect of ''C'' category institution where strength of students was less than 2000, the pay-scale to the post of Librarian was Rs. 690-1420 and Rs. 570-1100. The pay-scale admissible to the aforesaid categories of Librarian were revised under the Government Order dated 4th October, 1989. The pay-scale of Rs. 1000-1900 was revised to Rs. 2350-4300; pay-scale of Rs. 690-1420 was revised to Rs. 2000-3200; and pay-scale of Rs. 570-1100 was revised to Rs. 1400-2600.

During the period, the aforesaid revised pay-scales have been enforced under the Government Order dated 4th October, 1989. The State Government having regard to the recommendations of the University Grants Commission decided to provide the pay-scale as recommended by the University Grants Commission to the Librarian working in various institutions with the rider that such incumbents must fulfil the qualification prescribed under schedule ''Ka'' as notified by the University Grants Commission for the post of Librarian.

Under the aforesaid Government Order, the pay-scale admissible to the affiliated/associated Degree Colleges was fixed at Rs. 2200-4000 w.e.f. 1st January, 1996. Parishistha ''Ka'' to the said Government Order provides that the Librarian concerned must have to his credit a Post-Graduate degree in 1st Class and 2nd Class or Master of Librarian or degree in Library Science/Diploma in 2nd Class. Therefore, the persons like the petitioners who had a degree in 3rd Division did not become entitle for grant of pay-scale of Rs. 2200-4000 as per the recommendation of University Grants Commission. Petitioners, therefore, approached this Court by means of the present writ petition alleging therein that the qualification of Librarian working in Degree Colleges on the basis of the percentage of marks (division in which they have passed the Post-Graduate examination/Library Science degree/Diploma) amounts to a qualification in a homogeneous class and without there being any nexus to the object sought to be achieved, therefore, arbitrary under Article 14 of the Constitution of India.

It is contended that at the time the petitioners had entered into the service, the qualification possessed by them was in accordance with rules and, therefore, they were offered appointment as Librarian in Degree Colleges like any other person who had passed post-graduate degree in 1st and 2nd Division or degree in Library Science in 2nd Division. It is further contended that in a Degree College there is one sanction post of Librarian and, therefore, the denial of higher pay-scale to the persons like the petitioners who had performed identical duties like a Librarian having possessed post-graduate degree in 1st Division is highly discriminated.

In view of the aforesaid, it is contended that this Court may pass appropriate direction to the respondent authorities to grant the pay-scale of Rs. 2200-4000 to the petitioners also. It is also contended that the respondents cannot be permitted to change service conditions unilaterally after the petitioners have been inducted into service.

It yearned Standing Counsel appearing on behalf of the State-respondents disputed the correctness of the contention so raised and submits that it is open to the State Government to provide higher pay-scale to the persons having better qualification and further to alter the service conditions unilaterally as and when the situation so demands. However, such change in service conditions should not be adverse to the incumbents concerned. He points out that the salary of the petitioners have also been revised in accordance with Government Order dated 4th October, 1989 referred to above. They have been denied the pay-scales as recommended by the University Grants Commission because they did not fulfil the essential minimum qualification prescribed by the University Grants Commission for appointment on the post of Librarian. It is, therefore, contended that provision granting higher pay-scale to the persons who fulfil the minimum qualification as prescribed in the recommendation of the University Grants Commission cannot be said to arbitrary, inasmuch as a person who fulfil the qualification prescribed by the University Grants Commission qua the post of Librarian, a class must clearly distinct from the class to which the petitioner belongs who do not fulfil the eligibility conditions prescribed by the University Grants Commission for the post of Librarian. He, therefore, submits that claim of the petitioners that they have been discriminated, is incorrect. It is further pointed out that since inception pay-scale admissible to the post of Librarian has been classified having regard to the strength of students and, therefore, it is not open to the petitioners that all the Librarians working in Degree Colleges throughout State of U.P. discharging similar duties are entitled to similar pay-scale.

We have heard learned Counsel for the parties and have gone through the records of the case.

For the purpose of disputing the controversy so raised, it would be worthwhile to reproduce here the revision of pay-scale as was enforced for the post of Librarian under Government Order dated 4th October, 1989. The revision came into effect from 01-01-1986.

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�1�2350&75&2800&nk0jks0&100&4300

�2�2000&60&2300&nk0jks0&75&3200

d{k la0&1 es �1� 2350&4300 dk osrueku ,sls egkfo|ky;ks ds iqLrdky;k/;k{kska dks vuqeU; gksxk] ftudh Nk= la[;k 2000 ls vf/kd gS] rFkk mudh vgZrk Lukukrdksrj mikf/k ds lkFk lkFk iqLrdky; foKku es fMxzh rFkk 3 o"kZ dk vuqHko gsk rFkk �2� 2000&3200 dk osrueku vU; egkfo|ky;ksa esa fn;k tk;sxk tks mi;qZDr �1� esa ugh vkrs A

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�1�690&1420

�2�570&1100

230

230

16

�1�2000&60&2300&nk0jks0&75&3200

�2�1400&40&1600&50&2300&n0jks0&60&2600

Dz0 la0&2 esa �1� 2000&3200 dk osrueku ,sls egkfo|ky;ks ds iqLrdky;k/;k{kks dks vuqeU; gksxk] ftudh Nk= la[;k 2000 ls de gS] rFkk ftudh vgZrk Lukrd mikf/k ds lkFk lkFk iqLrdky; foKku esa fMxzh rFk 2 o"kZ dk vuqHko gks

�2�1400&2600 dk osrueku mu egkfo|ky;ks es fn;k tk;sxk tks mDr �1� dh Js.kh es ugh vkrs A

From the aforesaid, it would be seen that there were three different pay-scales admissible to the post of Librarian in various Degree Colleges. Such qualification was based having regard to the strength of the students and the qualification and experience possessed by the Librarian concerned. It is not in dispute that benefits of the said Government Order have been made available to the petitioners and their salary in the respective grades has been revised w.e.f. 01-01-1986. It is further apparent that the Librarian working in the Degree Colleges are not granted the same pay-scale and a distinction vis-a-vis the strength of students and the qualification possessed by them has been maintained all throughout. It appears that the University Grants Commission made a recommendation that the Librarian should be granted pay-scale of Rs. 2200-4000 w.e.f. 01-01-1986 and the State Government has issued the Government Order dated 29th February, 1996 wherein it was specifically noticed that the candidate who fulfil the essential minimum qualification prescribed for appointment on the post of Librarian would become entitle to the pay-scale recommended by the University Grants Commission i.e. 2200-4000.

It is thus apparent that the State Government took a decision to provide the pay-scale to the Librarians working in various Degree Colleges having provided the candidate concerned fulfil the essential minimum qualification prescribed by the University Grants Commission for the post of Librarian. Essential qualifications which have been prescribed by the University Grants Commission for the post of Librarian have been detailed in Appendix ''A'' to the said Government Order. It has demanded to the petitioners requirements as 1st Class degree of post-graduate or at least 2nd class of Library Science etc. Petitioners do not fulfil the aforesaid essential minimum qualifications which have been prescribed by the University Grants Commission for the post of Librarian in various Degree Colleges. The petitioners, therefore, are not entitled to the benefits of the Government Order providing for the pay-scale of Rs. 2200-4000 as recommended by the University Grants Commission in view of their inherent lack of the possession of prescribed essential qualification for the post of Librarian as recommended by the University Grants Commission.

In our opinion, the petitioner cannot equate themselves with a person who fulfils the essential qualification as recommended by the University Grants Commission for the post of Librarian. Petitioners and the persons who fulfil minimum requirements fixed by the University Grants Commission for the post of Librarian, therefore are two distinct classes they cannot be homogeneous merely because they performed same duties of the Librarian in Degree Colleges. Since the petitioners and the persons who fulfil the requirements of 29th February, 1996 for a separate class and therefore it is open to the State Government to provide the benefits of higher pay-scale as recommended by the University Grants Commission to the later class only.

A Constitution Bench of the Hon''ble Supreme Court in State of Mysore and Another Vs. P. Narasing Rao, held that educational qualification for the purpose of grant of pay-scale is a valid classification.

Similar view has been reiterated by the Apex Court in Government of West Bengal Vs. Tarun K. Roy and Others, and in M.P. Rural Agriculture Extension Officers Association Vs. State of M.P. and Another, Article 14 prohibits classification by the State "casuistically for salvaging status and elitism." However, Article 14 does not mean "dull uniformity specious elitism". It is not methodology of substitution of pervasive and slovenly mediocrity for activist and intelligent but not snobbish and uncommitted cadres. Vide The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others,

In Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, the Apex Court held as under:

The nature of work may be more or less the same but scale of pay may vary based on academic educational qualification or experience which justifies the classification. The principle of ''equal pay for equal work'' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ''equal pay for equal work'' to hem.

In U.P. State Sugar Corpn. Ltd. and Another Vs. Sant Raj Singh and Others, , the Hon''ble Supreme Court held that Article 14 does not apply in a1 vacuum. It provides equal protection of law for those who are equally placed in all respects, possession of a higher qualification has all along been treated to be a valid classification of two categories of employees.

We fail to understand as if classification is permissible on the basis of Higher education or additional qualification why classification on the basis of better/equality education is not permissible. Positive discrimination is not prohibited. A person of higher attainment can always be given a separate treatment as classification is for a legitimate purpose. In such cases mere in equality is not enough. Vide State of Bombay v. F.N. Balsara AIR 1951 SC 318; Kedar Nath v. State of West Bengal AIR 1953 SC 401; State of Kerala v. Kumari T.P. Roshana and Anr. AIR 1979 SC 572.

In Madhu Kishwar and others Vs. State of Bihar and others, the Apex Court held that every discrimination does not necessarily fall within the ambit of Article 14 of the Constitution and become liable to be struck off. Every case is required to be examined on its own facts, otherwise it would create a chaotic condition.

An individual can also form a class in itself and if the classification is found to be reasonable, it cannot be held to be invalid. Vide Lachhman Das on Behalf of Firm Tilak Ram Ram Bux Vs. State of Punjab and Others, Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan and Others, State of Jammu & Kashmir v. Bakshi Gulam Mohammad and Anr. AIR 1966 SC 122; D.S. Reddy v. Chancellor Osmania Univeresity and Ors. AIR 1967 SC 1305; and S.P. Mittal v. Union of India and Ors. : [1983]1SCR729 .

Thus, it is evident that reasonable classification is permissible, if it deals equally with all persons belonging to a ''well defined class''. The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and such differentia must have a rational nexus to the objects sought to be achieved. Law does not require that such classification should be perfect or logically complete nor it can have universal application in all circumstances Vide Kedar Nath Bajoria Vs. The State of West Bengal, and P.B. Roy Vs. Union of India (UOI),

More so, in case of sub classification unless it is found that it does not serve any purpose or has no rational nexus to the object to be achieved should not be interfered with.

In the instant case, the University Grants Commission has made the recommendation on the basis of which the State Government issued the Government Orders. Thus, it is decision based on the recommendation of the Expert Committee. The Court cannot sit in appeal against the decision o the Expert Committee and hold that it is arbitrary or unreasonable.

In the opinion of the Court, the two classes being separate the plea of discrimination falling within the ambit of Article 14 of the Constitution of India has necessarily turned out.

So far as the plea in service conditions changed unilaterally by the Government subsequent to the induction in service of the petitioners is concerned, suffice it to refer the following judgements of Hon''ble Supreme Court.

A Constitution Bench of the Supreme Court in Roshan Lal Tandon Vs. Union of India (UOI), examined the similar issue and observed as under:

...The legal position of a Government servant is more one of status than of contract. The Hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the government servant and his terms of service are governed by Statute or statutory Rules which may be unilaterally altered by the Government without the consent of the employee.

Constitution Benches of the Supreme Court in B.S. Vadera Vs. Union of India (UOI) and Others, The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, ; and B.S. Yadav and Others Vs. State of Haryana and Others, , held that service conditions of an employee can unilaterally be changed with retrospective effect.

In State of Mysore Vs. M.H. Krishna Murthy and Others, ; Raj Kumar Vs. Union of India (UOI) and Others, & Ex-Capt. K.C. Arora and Another Vs. State of Haryana and Others, the Apex Court observed that it was well-established that Rules made under the proviso to Article 309 of the Constitution, being legislative in nature and character, could be given effect to retrospectively.

A Constitution Bench Hon''ble Apex Court in state of State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, observed as under:

The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution and have to conform to the dos & don''ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The laws must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today.

In K. Nagaraj and Others Vs. State of Andhra Pradesh and Another, , the Hon''ble Supreme Court upheld the amendment in the Andhra Pradesh Public Employees (Regulation of Conditions of Service) Ordinance, 1983 by which the age of retirement was reduced from 58 to 55 years observing neither being arbitrary nor irrational. The Apex Court held that as it would apply in future of the existing employees and does not take away the right of the persons who have already retired, the amendment was not retrospective and those persons who were already in service and were expecting to retire at the age of 58 years and would now be retired at the age of 55, cannot claim that the Rules have been amended with retrospective effect taking away their accrued rights.

In T.R. Kapur and Others Vs. State of Haryana and Others, the Hon''ble Apex Court again examined the similar issue and held as under:

It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect.... It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognized principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the test of Articles 14 and 16(1) of the Constitution.

In K. Jagadeesan Vs. Union of India and others, , the Supreme Court held that if the employer unilaterally amends the Rules, reducing the chances of promotion in future, it cannot be held that such amendment takes away the rights accrued to the employee, as it cannot be held even by stretch of imagination that the Rules have been amended and made applicable with retrospective effect. In J. Ranga Swamy Vs. Government of Andhra Pradesh and Others, & S. Satyapal Reddy and Others Vs. Govt. of A.P. and Others, the Hon''ble Apex Court held that fixing the eligibility, i.e. qualification/experience etc. fall within the ambit of the Executive and "it is not for the Court to consider the relevance of the qualifications prescribed."

In State of Jammu & Kashmir Vs. Shiv Ram Sharma and Others, the Hon''ble Supreme Court rejected a similar contention and held that if by amendment, the chances of promotion have been reduced, it cannot be held that the promotional avenues have been denied totally and no direction can be issued to modify the Rules by applying the principles of avoidance of stagnation. The Court held as under:

It is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service, the requirement of passing the matriculation was not needed and while they are in service, such prescription has-been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those Rules framed by the Government in that behalf would always be favourable to them.

Similarly, in The State of Karnataka and Another Vs. Mangalore University Non-Teaching Employees Association and Others, , the Hon''ble Supreme Court held that conditions of service can be altered unilaterally by the employer but it should be in conformity with legal and constitutional provisions.

At this stage, it has been brought to our notice that certain petitioners who have acquired qualification by obtaining sufficient degrees of graduation are now within the four corners of the Government Order dated 29-02-1996, such petitioners are at liberty to make a representation ventilating all their grievances qua their claim of benefits of the Government Order dated 29-02-1996 from the date of acquiring the better qualification before the Respondent No. 1 and he shall consider the same and pass appropriate order strictly in accordance with law, preferably within 8 weeks from the date a certified copy of this order is filed.

Subject to the observations made hereinabove, the writ petition is dismissed.