Ramendra Nath Dey vs State of Tripura and Others

D. Biswas, J.—By this common judgment, these Civil Rules (No. 84 of 1992, 92 of 1992 and 279 of 1992) are proposed to be disposed of at the very outset, it is necessary to clear the fact of each case separetely.

In Civil Rule No. 84 of 1992, the Petitioner Shri Ramendra Nath Dey, Senior Lecturer of Government Music College, Agartala, has claimed the pay scale recommended by the University Grants Commission for the post of Assistant Professor with effect from 1.12.1977 and the senior scale of pay with effect from 1.12.1985 along with the prayer for a direction to the Respondents not to appoint any other person as Vice-Principal of the said College except the Petitioner. The Petitioner who is a Master-Degree holder in Classical Vocal Music having to his credit the masters degree in Bengali and bachelors degree in Education, joined the post of Senior Lecturer in the said College on 30.4.1977 for imparting lessons in degree course in music. Initially, the college was affiliated with the Calcutta University, but on constitution and establishment of the Tripura University, the B-Music of the college was affiliated with it with effect from 29.10.1987. In 1986, Government of Tripura extended the University Grants Commission scales of pay to the College Teachers'' working in the State of Tripura. The Petitioner claimed the U.G.C. scale meant for the Assistant Professor with effect from 1.12.1977 (post of Senior Lecturer has been re-designated as Assistant Professor) and, on completion of 8 years from 1.12.1977, the senior-scale meant for the Assistant Professors with effect from 1.12.1985 asper U.G.C. recommendation. The claim of the Petitioner is mainly based on the judgment of this Court passed in Civil Rule No. 78 of 1980 wherein the Court while holding that the B-Music course of the Government Music College is a degree level course of the college affiliated to the Tripura University also recommended the U.G.C. pay scale to the Principal on the ground that denial thereof to the Principal was arbitrary and contrary to the provisions of Article 14 of the Constitution. The Petitioner being one of the three members of the teaching staff, taking the said judgment as ground-swell, has staked his claim. The Petitioner, being senior most lecturer of the college also sought for a direction for consideration of his candidature for promotion to the post of Vice-Principal.

In Civil Rule No. 92 of 1992, Smt. Ashima Bhattachagte and in Civil Rule No. 279 of 1992 Smt. Namita Deb Choudhury seek relief by way of a direction for their absorption in the post of Assistant professor of the College in the B-Music Wing with consequential benefits of U.G.C. scale with effect from their respective date of joining.

The Petitioner in Civil Rule No. 92 of 1992 having her Masters Degree from Rabindra Bharati University, Calcutta and, at the relevant time, working as Assistant Teacher in Maharani Tulshibati Giris Higher Secondary School, was selected and deputed to the Music college to conduct the classes in the streams of Rabindra Sangeet, Western Music and Kamataka music in the B-Music Wing and, accordingly, she joined the college on deputation on 9.12.1977.

The Petitioner in Civil Rule No. 279 of 1992, was initially appointed as Lecturer in Melagarh Higher Secondary School, West Tripura and was working at the relevant time in Government Women''s College when she was deputed to the Government Music College where she had joined on 5.12.1977 to impart lessons in Bengali which is one of the objects prescribed.

The Petitioner in Civil Rule No. 84 of 1992 stands on different footing in as much as he was directly appointed as lecturer in the Music College while the Petitioners in other two writ petitions were deputed from their parent departments while working as lecturer/Astt Teacher in Higher Secondary Schools. In view of this difference in the standing of the Petitioners, the case of the Petitioners in Civil Rule No. 84 of 1992 is proposed to be dealt with separately.

It would appear from para 6 of the counter submitted by the state that the Music college (B-Music wing) was deemed to have been affiliated to the Tripura University with effect from 2.11.1987. The status of this college as a Degree College and its affiliation to the University came in question in an earlier writ petition (Civil Rule No. 78 of 1980) and this petition was disposed on 6.1.1989 directing payment of U.G.C. scale as per U.G.C. recommendation to Shri Tripurendra Bhowmik, the writ Petitioner, who was then working as Principal of the college. Acting upon the said judgment, the State Government extended the scale as per U.G.C. recommendation to the Principal by addendum dated 31st May, 1993 inserting necessary provisions in the Government Notification No. F.1(499)-DHE/88 dated 31.3.1989. It is, therefore, clear that the State Government accepted in principle the ratio laid down in the said case to extend the U.G.C. scale to the Principal of the College. This sets at rest the question regarding the status of the music college (B-Music Wing) and this question cannot be re-opened for decision afresh by this Court.

Shri A. Chakraborty, learned senior Counsel for the Petitioner, argued that since the judgment delivered by a Division Bench of this Court was accepted and acted upon by the Government, they carmot now deny their obligation under the judgment to extend the U.G.C. scale to the writ Petitioner. He has also referred to an observation made by the Division Bench in para 5 of the judgment to the effect that the affidavit-in-reply filed by the State Government on 4.1.1989 in the said writ petition clearly showed that three members of the teaching staff including the Principal of the Music college were conducting B-Music course and denial of University Grants Commission pay-scale to the Petitioner(Principal) was, therefore, discriminatory and arbitrary. He sought for extension of U.G.C. recommendation on the basis of said ratio.

In para 6 of the affidavit-in-opposition dated 24.3.1995, the State Government denied that the applicant was appointed as teacher of Degree College (B-Music) as no post of teacher was created either for diploma course or degree course. It is further averred thit the Petitioner being a teacher like other writ peitioners cannot be redisignated as an Assistant Professor with the benefit of corresponding U.G.C. scale. But the statement by the Government in their counter donot reflect the correct position. From Annexure-1, at page 11, we find that Shri Ramendra Nath Dey, the Petitioner, was offered the post of Senior Lecturer in Vocal Music and was directed to report for duties to the Principal Government Music College, Agartala. Annexure-1, in unambiguous language, shows that the Petitioner was at the veiy first instance appointed as Senior Lecturer in Vocal Music in the Government Music College. It is not understood as to how the Government in their affidavit could say that the status afld position of the Petitioner is of a teacher like other writ Petitioners. Submission made by the learned Government Advocate is, therefore, liable to be rejected (in view of Annexure-1) as the status of the writ Petitioner as Senior Lecturer with effect from the date of his appointment is evident in Annexure-I.

The Government vide Notification dated 31st March, 1989, extended the U.G.C. scales to the college teachers of Tripura with effect fipm 1.1.1986. While implementing the U.G.C. recommendation in respect of college teachers, the Government excluded from its purview certain college including the Government Music College. Para 2 of the Government Notification of 1989 reads as follows:

The Govt, of Tripura have now decided to adopt and implement the revised pay scales for the teachers of Govt. Degree Colleges, Govt. College of Education, Regional College of Physical Education and Tripura Government Law College with effect from 1.1 1986. These orders shall not apply to the teachers of Tripura Engineering College, Govt. Music College, Basic Training College and Govt. College of Art and Craft.

It would appear fi-om the above that the govenunent by way of policy decided to implement the revised pay scales for the teachers of Degree Colleges in the State of Tripura. But the teachers of the Government Music College which is also a Degree College so far it relates to the B-Music wing have been excluded. Obviously, the Government Music College imparting lessons in music at degree level and being affiliated to the Tripura University cannot be excluded from the purview of the scheme (Annexure-R/1) In para 7 of the Annexure-R/1 we find the reason for such exclusion. Para 7 of Annexure-R/1 read as follows:

The revised scales of pay are applicable only to the teaching staff of the colleges in the categories as mentioned in para 2 above, who having been appointed as such on whole time basis were in position on 1.1.86 or thereafter and were or have been drawing pay in the U.G.C. scales, 1973 against sanctioned posts.

The revised scales will not be applicable to the teachers who were or have been drawing pay in colleges m Non-U.G.C scales.

It would appear from para 7 reproduced above that the revised scales were not given to the teachers who were or have been drawing pay in colleges in non-U.G.C. scales. This means that the college teachers of the State of Tripura who were not already in receipt of U.G.C scales were kept outside the purview of the revised recommendation brought into force in the year 1986. This is, indeed, a policy matter of the State Government and therefore, it requires consideration whether it would be just and proper for this Court to interfere with the policy decision. Law is, however, setded that interference with the policy decision will be permissible when only the Petitioner suceeds in making out a case that he has been arbitrarily deprived of the scale while other persons similarly situated have been allowed.

Before embarkiijg upon further discussion, it is considered imperative to dispose of a technical objection raised by Mr. U.B. Saha, learned Government Advocate controverting the claim of the Petitioner on the ground that the claim of the Petitioner is barred by the principle of res-judicata as a similar question raised by the Petitioner in Civil Rule No. 195 of 1997 was decided against him. The Petitioner Shri Ramendra Nath Dey filed the aforesaid Civil Rule No. 195 of 1997 for quashing the seniority list. Recruitment Rules and the appointment of the Principal on the ground of inconsistency with the guidelines prescribed by the University Grants Commission. The pay scale given to the Principal which was less than that U.G.C. scale in force at that time was also one of the grounds for assailing the Recruitment Rules. The learned Single Judge, after a threadbare disctission, dismissed the writ petition thereby rejecting the contention of the writ Petitioner that the Rules and the seniority list prepared thereunder were violative of U.G.C. norms. According to Mr. U. B. Saha, learned Government Advocate, the applicability of the U.G.C. norms in respect of the Goverfiment Music College having been rejected by the learned Single Judge in the writ petition filed by the Petitioner (Civil Rule No. 195 of 1997), the Petitioner is therefore, estopped from raising the same question again in the instant writ petition.

It would appear from the aforesaid judgment that the learned Single Judge relying upon the decision of the Supreme Court in R.L. Bansal and others Vs. Union of India and others, observed that the Rules made under proviso to Article 309 of the Constitution, being legislative in character, caimot be struck down merely because the Court thinks that these are unreasonable. But the question relating to unreasonable and arbitrary exclusion of the Lecturers of the Music College from the purview of U.G.C scale was not an issue in that case and the decision of that case was rendered without reference to any specific prayer for implementation of such recommendation in respect of the Petitioner. Therefore, this aspect of the matter which was not covered by the aforesaid judgment remains open for adjudication Another special feature is that the instant petition was filed in 1992 where-as the judgment discussed above relates to Civil Rule No. 195 filed in 1997. A decision pronounced in a subsequent writ petition not exactly on the same subject and on a dififerent context, cannot be construed as a bar. Even, it cannot operate as constructive res-judicata so as to disentitle this Court from adjudicating the question relating to unreasonable and arbitrary refusal of the U.G.C. scale.

Now let us revert back to the claim of the Petitioner based on the earlier judgment passed in Civil Rule No. 78 of 1980(Annexure-3). The said judgment was rendered by a Division Bench of this High Court and for the purpose of appreciating relevance thereof, it isneoessffly to reproduce hae-in-below certain excerpts from the said judgment:

It is not disputed that the Tripura Government Music College is conducting B. Music course along with other diploma and certificate course. It is also not diluted that for the purpose of B. Music course the College was affiliated to the Calcutta University in the year 1977 and now to tiie Tripura University.

The decision of the Government is absolutely clear and unambiguous. The Government decided to grant University Grants Commissicm pay scales to teachers of all colleges affiliated to University. From the supplementary affidavit filed the Petitioner we find that recently State Government decided to grant the said pay scales even to the membos of the Regional College of Physical Education affiliated to University for the purpose of degree as well as diploma. That beiiig the position, we do not find any justification for not granting the University Grants Commission pay scale to the present Petitioner of the college as the college is conducting B-Music Course. and it is affliated to the University. Mr. Majumder, has raised another contention that as the college is also conducting diploma and certificate course the Petitioner is not entitied to get the pay scale as these courses are not affliated to any University. In reply, Mr. Lodh has rightly submitted that this is an additional work conducted by the college in question and for that reason the present Petitioner cannot be denied of his right to get the pay scale of the University Grants Commission. From the afifidavit-in-reply filed by the state on 14.1.89 we find that three members of the teaching staff including the Principal of the Music College are conducting B. Music course. This is the admitted position. So, we are constrained to hold that denial of University Grants Commission pay scale to the present Petitioner is discriminatoiy and also arbitrary and is hit by Article 14 of the Constitution.

The above decision irresistibly leads to the conclusion that the senior Lecturers of the Music College who are similarly situated with die Principal cannot be denied the U.G.C. scale unless they fall short of U.G.C. norms, or otherwise disqualified. So for the Petitioner Shri Dey is concerned, the materials on record show that he is a Master Degree holder in Bengali and Music and also possess a Bachelors degree in Education. Annexure-4 issued by the Joint Secretary to the Government of Tripura itself shows that the Petitioner Shri Dey, on consideration of his qualification and other eligibility was allocated to the degree course in die Government Music College along widi Smiti Ashima Bhattacharjee, the writ Petitioner of Civil Rule No. 92/92. This allocation was made on fulfilment of the eligibility criteria prescribed by the University Grants Commission. This is evident from the penaltimate para of the office order referred to above. Therefore, the eligibility of the Petitioner for entitlement to the U.G.C. scale also stands cleared from the order passed by the Joint Secretary, Education Department. That apart, there is no effective challenge to the claim that the Petitioner is a whole-time teacher. This narrows down the scope of enquiry in this case to the sole question whether non-receipt of U.G.C. scale form before would be an acceptable ground to keep them out of the purview of the scheme.

Mr. Chakraborty, learned senior counsel put much emphasis on the judgment in C.R. 78 of 1980. But the learned Government Advocate controverted the claim pleading that the judgment delivered by this Court in the foresaid Civil Rule was contrary to the principles laid down by the Supreme Court in State of West Bengal and others Vs. Tropical School Employees'' Union and others, His further aigued that the aforesaid judgment was a judgment in personam and, as such decision of that case is not relevant for the purpose of adjudication of the dispute in the instant writ petition.

In State of West Bengal and others Vs. Tropical School Employees'' Union and others, the Supreme Court did not endorse the decision of the High Court in extending the benefit of pay scales prescribed by the U.G.C. to the non-teaching medical staff and also to class IV Government employees. In the instant case, we are dealing with a duly appointed Senior lecturer who has been discharging his duties as a teacher in Music College since 1977. It is beyond one''s comprehension as to how the decision rendered by the Supreme Court in respect of non-teaching staff could be imported to apply to a member of teaching staff of a degree level college. The analogy sought to be introduced is undoubtedly wide on the mark and has no significance.

In Union of India (UOI) and Another Vs. P.V. Hariharan and Another, the Supreme Court sounded a note of caution against interference with the pay scale recomnwnded by the Pay Commissicni. It would appear from para 5 of the judgment that it was a case where the tribunal interfisred with the pay scales without adequate reasons and without being conscious of the that fixation of pay is not the function of fiie Tribunal. In that case, the pay structure reccnaeimended by the Pay Commission was unsettled. Hen we are not dealing with the recommendations by the U.G.C. The State Government while implementing the recommendations excluded the Government Music College from in the purview of U.G.C scale and propriety of this very order is in challenge. The decision in this case will rest on the sole question as to whether the State action in keeping the lecturers of the Government Music College out of the purview of the U.G.C. scale is unreasonable and arbitrary. The structure of the scales recommended by U.G.C. was also not in dispute in the earlier writ petition. Nor it is disputed here. I am, therefore, unable to agree with the learned Govt. Advocate that the decision in Civil Rule No. 78 of 1980 was in any manner contrary to the law laid down by the Apex Court.

Learned Government Advocate further aigued that the judgment delivered by the Division Bench in Civil Rule No. 78 of 1980 is a judgment in personam and the decision rendered therein cannot be relied upon to extend the benefit to the Petitioners. In the aforesaid judgment, the Division Bench accepted Music College(B-Muse Wing) as a Degree level College and this decision is undoubtedly final and decisive so far as the status of the College is concerned. The claim of the Petitioner for U.G.C. scale will, however, depend upon his eligibility vis-a-vis tte validity of the proviinons of para 2 of the Government Notification dated 31st March, 1989. Therefore, the decision of this Court in Civil Rule No. 78 of 1980, whether in personam or in rem, has immense significance in determining the claim of the Petitioner.

The documents on record unquestionably point out that Shri Dey was duly appointed as Lecturer of the Music College and has been serving as such since 1977. He also fulfils the U.G.C. criteria required for such posts. The State Govt while extending the scale to the similarly circumstanced teachers, excluded the Petitioner from perview of U.G.C. scale. Even, he was not considered when the U.G.C. Scale was extended to the Principal of the College under direction of the Court. This undoubtedly amounts to discrimination. It is true that differential treatment ''per se'' does not constitute violation of Article 14, but absence of reasonable basis for such differentiation does. The reason for such discrimination as is available in para 7 of the Government Notification of 1989(Annexure-R/1) does not appear to be adequate.lt is evident that while all the teachers in Degree Colleges in the State have been given the benefit of the U.G.C. scale. The eligible teaches of the Music College (B-Music including the writ Petitioner have been left out only on the ground that they were not covered by the U.G.C. scale from before. That apart, the plea of financial constraint as is evident from Government file produced before the Court to justify such differential treatment does not augur well with the concept of equal protection. Differential treatment, without any reasonable basis, is impermissible and has to be taken care of. The State action which is exfacie bereft of judicial attachment cannot but be deprecated as arbitrary. Had the exclusion been on the ground of lack of qualification and experience, the question would have been altogether different. The manner in which and the grounds for which the distinction has been made undisputedly shows that the decision making process was influenced by consideration other than legal and judicial. Annexure-R/1, the executive order embodying the arbitrary decision of tte State cannot clog the process of justice. The prayer for extending the U.G.C. scale has to be allowed despite the fact that the Scheme Annexure-R/1 has not been specifically challenged.

The other prayer of the Petitioner for a direction not to fill up the post of vice- Principal by any person other than the Petitioner himself is not maintainable on the ground that Hie authorities are free to proceed to fill up the post of Vice-Principal in accordance with the Recruitment Rules. If the Petitioner is within the consideration zone for promotion to said post, bis candidature will naturally be taken by the authority concerned for consideration for promotion to the said post in accordance with the provisions of the rules. Hence, no direction to this effect is felt necessary.

Now, let us refer to Civil Rule No. 92 of 1992 filed by Smti. Ashima Bhuttachaijee. While working as Asstt. teacher in Maharani Tushibati Girls'' H.S. School she was deputed to work in the Music College in her existing pay and allowances vide order dated 1.12.1977. The deputation order reads as follows:

No. F. 3(3)-Music/77 Government of Tripura Education Directorate Dated, Agartala, the 1/12/1977. MEMO

Subject: Deputation of Assistant Teacher Smti. Ashima Bhattacherjee(MA in Music), Asstt Teacher, M.T. Grils'' H.S. School, Agaitala is temporarily deputed to work in the Govt Music College, Agartala with her existing pay and scale of pay plus admissible allowances until further orders. She will report for her duties to the Principal, Govt. Music College. Agartala, Immediately.

Sd/- Director of Education Tripura.

In the same manner the Petitioner of Civil Rule No. 279 of 1992. Smti Namita Deb Choudhury, an Assistant Teacher was also deputed to the Music College in ho-existing pay and allowances sometime in the year 1977.

It would appear from the deputation orders that they were deputed in their capacity as Assistant teachers to work in the Govt Music College since 1977, both the writ Petitioners have been walking indie Miudc College withhout any intemqrtion. It would, finrther, appear from the pleading and connected documents that both of them are also duly qualified to hold the post of Senior Lecturer as per U.G.C. norms. The certificates issued by the Principal(available at Annexure-3 A in case of Smti Ashima Bhattachaijee and Annexure-3 incase of Smti Namita Deb Choudhury) would show that both of them were attached to the B-Music section of the college and have been imparting lessons in the degree course of the College since Hoe day they joined the College on deputation. Besides, Smti Ashima Bhattachaijee was also appointed by the Controller of Examinations if Calcutta University as examiner for the B-Music course Examinationin 1980, 1983 and 1987. Situated thus, it has to be decided whether the writ Petitioners who had put in 15 years of service at the time of institution of the writ petitions and by now, completed 20 years and whose services have been utilised in the degree course of the Music College all through could be denied the U.G.C. pay contraiy to die dictum "equal pay for equal woric" and refused absorption as senior lecturers(Asstt. Professor) as claimed by them. There is no denial to the fact that both the Petitioners submitted representations for their absorption without loss of time. Smti. Bhattacharjee, submitted her representation in the month of August, 1991 while Smti. Namita Deb Choudhury submitted her represention on 20th July, 1977 and also on subsequent occasions for absoiption. But the Respondents did not think it necessary to inform them of the decision, if any, taken on such representations. On the other hand, their services were utilised in the college widiout being recalled back to the lending department. Even they were not given proforma immiotion in their parent department. All these maybe read as demonstrative of the intention on die part of the Respondents nottorepartriate die Petitioners to their parent departments. But now, exhibiting utter ignorance of the circumstances which compelled the Petitioners to work in the Music College for such along time, the Respondents are resisting their claim for absorption and U.G.C. scale widiout any reasonable ground while other teachers similarly circumstanced have been given the said benefits. This will get fiirther crystallized if we take note of Annexures-1O and 10-A of the supplementary affidavit. The State Government has, in pursuance of a judgment passed by this Court, appointed some Assistant Teachers as lecturers/Assistant Professors of the Government Degree College. Because of its importance for the purpose ofdiis case, one of such notifications is reproduced below:

No. F.1(5-51)-DHE/79 Government of Tripura Education Department Dated Agattala die 21.11.1995 NOTIFIVATION

With reference to Government of Tripura, Education Department''s Notification No. F.1(411)-DHE/88(L-G) dated 30.5.1989 issued in pursuance of the judgment passed by the Hon''ble Gauhati High Court. Agartala Bench, the Governor is pleased to appoint the following Assistant teachers as mentioned in Colimm No. 2 of the Schedule below as Lecturars/Assistant Professors of Colleges as mentioned in Column No. 3 in the pre- revised scales of pay as mentioned against each in Column No. 4 with other admissible allowances with effect from the date as mentioned against each of their names in Column No. 5 and post them temporarily to the colleges as mentioned column No. 6 of the Schedule:

SI No. Name of Assistant Teacher Post against which appointed Pre-revised scale of pay Date of appointment with retrospective effect Degree College to which posted

1 2 3 4 5 6

Smti. Nibha Roy Choudhuy Lecturer Higher secondary) Bani Bidyapith Lecturer Rs. 275-650/- 16.9.68 M.B.B.S. College Agartala.

Sri Dwipendra Ch. Roy, Asstt. Teacher, Khowai H.S. School, Khowai Lecturer Rs. 275-650/- 16.8.98 Govt. College of Education, Agartala

Sri Malay Kr. Saha Assistant Teacher, Pallimangal H.S. School Agartala Assistant Professor in Bengali Rs. 700- 1600/- 17.12.77 Govt. College of Education, Agartala

It would appear from above notification that some Assistant Teachers were appointed as teachers/assistant Professors in various subjects retrospective effect in M.B.B College and Government College of Education. This restrospective appointment shows tiuit they were on deputation to the said Colleges. These colleges are covered by the U.O.C. scale as per Annexure-R/1. Therefwe,there cannot beany reason for the Government to deny the same benefit to the writ Petitioners, namely Shrimati Ashima Bhattacharjee and Smti. Namita Deb Choudhuiy.

The learned Government Advocate cited sotne decision of the Siqyreme Court to counter the claim of the Petitioners. In the The Regional Manager and Another Vs. Pawan Kumar Dubey, it would appear that the Supreme Court did not approve of sudden reversion of the Petitioners without reasonable explanation regarding existence of any administrative exigency for such reversion. The Supreme Court also observed that before Article 16 is held to have been violated by some action, there must be a clear demonstration of discrimination between one Government servant and another, similarly placed. The principles highlighted in the case does not salvage the cause of the Respondents.

Learned Government Advocate vehemently atguedthat the Petitioners are now serving in the Government Music College by vutue of the stay order granted by the Court and,as such, they cannot have any mileage out of their service after stay was granted by the Court. The order for mamtenance of status quo was passed by this Court on 20.12.1995 in case of Smti. Ashima Bhattachaijee and on 4.1.1996 in case of Namita Deb Choudhury after hearing the learned Government Advocate. The Petitioners joined the Music College in 1977 and by the time the stay orders were passed, they had completed about 18/19 years of service. This is indeed a long period and has to be given due waitage.

During pendency of the writ petition, vide Memorandum dated 25th March, 1996(Annexure-4),the Petitioner Smti. Ashima Bhattachaijee was directed to be released from the Government Music College on reversion to join M.T. Girls H.S. School. This order passed on 12.3.1996 was subsequently withdrawn by order dated 25.3.1996. This is suggestive of the fact that the Respondents are bent upon in reverting the writ Petitioners to their parent department while they appointed other teachers on deputation to M.B.B College and Government College of Education as lecturers and Assistant Professor. The refusal of such benefit to the writ Petitioners without any reasonable basis sounds a note of discord. This approach bereft of judicial sanctity is ex facie discriminatory. In fact, the services of the Petitioners have been utilised by the State Government in the degree course for more than a decade without least reservation. Denial of thek claim for absorption and better pay at this fag end of their service career without any cogent reason is undoubtedly demonstrative of malice unsustainable in law.

In T. Shantharam Vs. State of Karnataka and Others, the Supreme Court disapproved repatriatidn of an employee on deputation to anothor department to a higher post where he had worked uninterruptedly for about 32 years. According to Ac Supreme Court, such reversion was not justified.

Learned Government Advocate further placed reliance on the decision of the Supreme Court regarding right of deputationists and their regulation by refenitig to deeisims in Ratilal B. Soni and others Vs. State of Gujarat and others, , D.M. Bharati Vs. L.N. Sud and others, , State of Haryana and others Vs. Piara Singh and others etc. etc., , and 1996 VIII AD 680 (SC) The decision in Ratilal (supra) cannot be invoced in this case for tiie reason that it was a case of deputation of members of Panchayat Service of the State of Gujrat to the State Govonment and the judgment midered in that case was on a different context distinguishable from the fiactual matrix of this case. The decifflon in D.M. Bharati(Supra) mainly related to laches on the part of an employee removed from service in challenging the order of removal witiiin a reasonable time. The decisions in Piara Singh(Supra) and Bishamber Dutta(Supra) have been rendered on different context. These decisions are of no help to the Respondent-state.

Here, we may refer to the decision rendered in Bhagwan Dass and Others Vs. State of Haryana and Others, Where in para 13, in the backdrop of fact situation of that case, the Apex Court held that when the duties and functions discharged and work done by supervisors appointed on regular basis and those appointed on temporary basis are similar, the fact that the scheme under which temporary appointments are made is a temporary scheme and posts are sanctioned on an year basis regard to the temporary nature of the scheme cannot be a factor for violating "equal pay for equal work" doctrine. According to Supreme Court, whether appointments ee for temporary periods against posts in temporary scheme is irrelevant and, when it is shown that the nature of the duties and functions dischaiiged and the work done is similar, the doctrine of "equal pay for equal Work" is to be applied. Similarly view is also available in Swapan Kumar Choudhary and others Vs. Tapas Chakravorty and others, The writ Petitioners have been working as Lecuturers in the degree course of the Music College since 1977. The duties and finctions discharged by them are equal to other Assistant teachers Avho were also on deputation and appointed as lecturers/Assistant Professors with retrospective effect It is, therefore, not understood as to how the Petitioners couldbe discriminated with their counter part in other colleges. In my considered opinion, it will be a miscaniage of justice if the discrimination is allowed to continue.

After careful consideration of the case laws referred to by both the parties and considering the circumstances of these cases, I am of the opinion that a case of differential treatment without reasonable basis has been made out. As such, the Petitioners deserve absorption and pay benefit.

In the result, the writ petitions are allowed. The Respondents are dirroted to issue necessary orders with in 3 months giving benefits claimed by the writ Petitioners in their respective petitions in terms of the observations made here-in-before.

No order as to costs.