JUDGMENT Aloke Chakrabarti, J.
1.The petitioner filed the present petition for issuance of mandamus to redesignate the post of Instructor in the Department of Fine Arts of Allahabad University to the post of lecturer and to pay salary of lecturer to the petitioner who presently is holding the post of instructor.
2. The facts stated in the writ petition, relevant for the purpose, are that the petitioner was appointed as instructor in the Department of Fine Arts of Allahabad University by order dated 19/20.1.1987. He was appointed on permanent basis by order dated 2.12.1989. Such appointment, it has been stated, was upon successful selection by a Selection Committee considering several candidates including the petitioner. The petitioner is performing functions of lecturer in the department concerned including teaching graduate as also postgraduate classes.
3. It has been further stated in the writ petition that on considering representation made by the instructors from time to time, the Executive Council of Allahabad University on 19.3.1974 passed a resolution that the post of instructors should be redesignated as lecturers and all the confirmed incumbents working against these posts be given lecturer's grade. The State Government did not take any action in the matter and, therefore, the said resolution could not be implemented. The Executive Council as well as Academic Council of University again resolved that the instructors be given the scale of lecturers and posts of instructors may be redesignated as lecturers. The said resolution, though was submitted before the State Government on 7.2.1981 and again on 14.3.1981, no action was taken by the State Government. The instructors continued to agitate their claims and approaches were being made to the appropriate authorities.
4. Contention has further been made that some posts of demonstrators. Cartographers, Instructors in Physical Education Department and Research Assistant in the University have been given designation as well as scale of pay of lecturers. The present instructors though were getting the same scale as of Demonstrators, Cartographers, etc., they are still being deprived. In such circumstances, the present writ petition has been filed for the relief already stated hereinabove.
5. This writ petition, when was considered by a Division Bench, two sets of judgments were considered and the writ petition was referred to a Full Bench by order dated 30.7.1997. The reason for the same was on contention of parties that one Division Bench in Civil Misc. Writ Petition No. 5328 of 1992, Dr. Ashutosh Kumar Upadhyay v. Sampurnanand Sanskrit University, by judgment dated 22.5.1992 allowed a similar writ petition issuing mandamus directing the concerned University to treat instructor as lecturer and following the same by judgment dated 4.11.1992 Civil Misc. Writ Petition No. 21709 of 1988. Pankaj Kumar v. University of Allahabad, was allowed whereby research assistant in Allahabad University was granted pay parity with the lecturer of the University. On the other hand, another Division Bench deciding Civil Misc. Writ Petition No. 5327 of 1982. Radhey Shyam Bhalt and others v. State of U. P., 1996 13) AWC 1468 : 1996 ALJ 1624, dismissed the same refusing the claim of the instructors in the Department of Fine Arts for pay parity with the lecturers.
6. The petitioner filed an application for amendment of the writ petition which was allowed by order dated 4.3.1998. The order of the State Government dated 15.3.1982 was challenged.
7. Counter-affidavit was filed on behalf of State of U. P. as also by the University, rejoinder-affidavit was also filed.
8. Heard Mr. R. N. Singh, learned counsel for the petitioner. Mr. Ashok Bhushan, learned counsel for the University and Mr. Yatindra Singh, learned Additional Advocate General representing the State respondents.
9. Contention of the petitioner is that the only defence of the University to the claim of the petitioner is that the said claim cannot be allowed by the University authorities without prior approval of the State Government in view of Section 21(3) of the State Universities Act. It has been stated that the State Government never refused the claim and only because no decision was taken by the State Government, even the decision in favour of the petitioner taken by the University could not be implemented. The further contention of the petitioner is that other designation holders belonging to the same category of the petitioner, namely Demonstrators, Research Assistants and Cartographers having been already given the benefit, the claim of the petitioner cannot be kept withheld. It is contended further that the claim of the petitioner having been accepted by the Executive Council and Academic Council of the University, petitioner is entitled to relief before this Court. With regard to the judgment in the case of Radhey Shyam Bhatt, it has been stated that the said case has not been decided correctly applying the correct legal principles and, therefore, has no binding effect. Reliance has been placed on the judgment in the case of Dr. Ashutosh Kumar Upadhyay, (supra).
10. The learned counsel for the University authorities relied on the contentions made in the counter-affidavit of the University and stated that process of appointment for instructors is different from the process of appointment of the lecturers and, therefore, no parity can be drawn between the two categories. Moreover, in the year 1982, the State Government already rejected the proposal for benefits in favour of the instructors on the ground of parity and, therefore, it cannot be contended that the proposal of the University having been not disposed of by the State Government, there stands a decision of the University.
11. On behalf of the State respondents also, contention has been made that process of recruitment in the post of lecturer and for the post of instructor is different. It is also contended that classification on the basis of qualification or responsibility is permissible in law and in case of such difference in any of the said aspects, the principle of equal pay for equal work does not apply.
12. Learned counsel for both the said respondents referred to case law in support of their contention. Specific reliance was placed to the findings in the case of Radhey Shyam Bhatt, which was a case filed by instructors in the Department of Fine Arts of Allahabad University and their claim for similar benefits having been already rejected and there being no material produced by the petitioners to contradict the findings therein, the present petitioner is not entitled to any relief before this Court.
13. After considering the respective contentions of parties, it appears that in the case of Radhey Shyam Bhatt, at the instance of instructors of the same Department of Allahabad University, same claim was refused by the Division Bench of this Court in a contested proceeding. Similar claim on the basis of the same facts was rejected by giving detailed reasons and upon arriving at a specific finding and upon consideration of the law in this connection. On behalf of the petitioner, nothing has been shown that any of the findings arrived at by the Division Bench in the case of Radhey Shyam Bhatt is wrong and contrary to materials on record.
14. The claim of the petitioner is required to be considered on facts involved upon application of principles of law in respect of equal pay for equal work. Admittedly, the petitioner was appointed as instructor in the department of Fine Arts and the posts of lecturer and instructors are different having different pay-scales.
15. Qualifications of lecturer as contained in paragraph 11.01 of the First Statute, 1976 of Allahabad University are as follows :
"(4) In the case of Department of Fine Arts in Faculty of Arts, the following shall be the minimum qualifications for the post of a lecturer in the University, viz., Either Master's degree or the equivalent degree or diploma recognised by the University in the relevant subject with at least 55% marks or its equivalent grade and consistently good academic record.
or A traditional or a professional Artist with highly commendable professional achievement in the subject concerned."
The qualification required for the instructor is as follows :
"Instructor.--The applicant must possess a degree/diploma in painting from a recognised University/Institution."
A comparison of the aforesaid makes it clear that qualifications required for the said two categories of posts are substantially different.
16. On the question of mode of recruitment, it appears that the lecturers are appointed by Selection Committee as constituted under Section 31 of the U. P, State Universities Act consisting of two experts nominated by the Chancellor but the recommendation of Selection Committee has to be approved by the Executive Council.
17. With regard to instructors, it appears that appointment can be made by the Executive Council on such terms and conditions as provided in paragraph 10.04 of the First Statute. According to the provisions contained in Chapter X of the Ordinances, instructors are appointed on the recommendation of Selection Committee consisting of Vice-Chancellor, Deen of Faculty and Head of Department. Therefore, the process of recruitment of the two categories is also substantially different.
18. A distinction has been drawn between 'teacher' and 'teacher of University' with reference to Section 2 (18) and Section 2 (19), of U. P. State Universities Act, 1973 in support of the contention that a teacher of University not only imparts instruction but also guides or conducts research whereas Instructor is employed for helping imparting instruction only and he does not guide or conduct research.
19. On behalf of the petitioner, claim has been made relying on the judgment in the case of Dr. Ashutosh Kumar Upadhyay (supra), claiming similarity of cases of Instructors appointed in the Sampurnanand Sanskrit University at Varanasi and those appointed in Allahabad University. Claim has also been made drawing parity between the instructor of Allahabad University and the research assistant of Allahabad University as decided in the case of Pankaj Kumar (supra). But, on behalf of the petitioner, nothing has been shown in support of drawing such parity in respect of present instructor of Allahabad University with either the research assistants in Allahabad University or instructors of Sampurnanand Sanskrit University. In absence of these materials, no parity can be drawn as sought for by the petitioner and the Judgment in the case of Dr. Ashutosh Kumar Upadhyay and Pankaj Kumar (supra), cannot be held applicable. Moreover, the judgment in the case of Dr. Ashutosh Kumar Upadhyay shows clearly that the circumstances prevailing there were different and the law decided in those facts cannot be made applicable in the present proceeding.
20. Law has been referred to on behalf of respondents as decided in various cases. Observation in the case of Secretary, Finance Department v. West Bengal Registration Service Association, AIR 1992 SC 1203, settles the general position and the relevant portion thereof is as follows :
"It is well-settled that equation of posts and determination of pay scales is the primary function of the executive and not the Judiciary and, therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction."
21. As regards responsibility for showing the parity, observation has been made in the case of State of Tamil Nadu and another v. M. R. Alagappan and others, JT 1997 (4) SC 515, as follows :
"......that person claiming parity in pay on the principle of equal pay for equal work must show that his qualification, duties and functions are similar to person with whom he claims parity."
This observation was made while referring to the case of Sita Devi and others v. State of Haryana, (1996) 10 SCC 1.
22. With regard to the effect of difference of qualifications, in respect of two different categories, law has been explained by the Apex Court in the case of Chandigarh Administration v. Anita Sood (Smt.) and others, 1995 Supp. (3) SCC 613, and relevant portion thereof runs as follows :
"The quality and standard of teaching by a Professor is bound to be of much higher standard than that of a lecturer. Keeping in view the qualitative difference of standard of teaching between the two teachers with different designations it cannot be claimed that they are entitled to the same pay scales."
23. The requirement of law in respect of the present aspect was also considered by the Division Bench of this Court in the case of Dr. Bajrang Bahadur Singh and another v. State of U. P., 1997 (3) AWC 1476, and the relevant portion thereof is quoted below :
"12. From the conspectus of views taken in the aforementioned decided cases, the position is clear that to substantiate a claim of higher scale of pay /salary on the basis of the principle 'equal pay for equal work' the petitioner-
appellants will have to establish that they are equally placed in all respects with the person or persons whose scale of pay/salary they claim. They must allege and prove that the mode of recruitment. eligibility qualifications prescribed, the nature of duties/responsibilities discharged/ shouldered, the done and the service rules (if any) applicable to the two posts are similar. They cannot succeed in the case merely by showing that they have been discharging same duties which are being discharged by persons holding the other class of posts."
24. In the case of V. Markandeya v. State of Andhra Pradesh, AIR 1989 SC 1308, the Apex Court has observed that the classification made between the graduate supervisor and non-graduate supervisor is reasonable. Similarly, in the case of Shyam Babu Verma and others v. Union of India and others, JT (1994) 1 SC 574, it has been held that nature of work may be more or less same, but scale of pay may vary based on academic qualification or experience which justifies classification.
25. Designation of a post and the scale of pay admissible for the same are matters for consideration by the employer. While taking a decision relating to these matters, several factors like eligibility qualifications for the post, nature of duty assigned for the post, the manner of recruitment to the post and the quality of work expected from the incumbent, etc. are to be taken into consideration. No general principle of universal application and no straight jacket formula can be laid down for determination of the questions. In case a dispute is raised relating to the matter, it has to be decided on the basis of the facts and circumstances emerging from the' materials on record bearing in mind certain principles laid down by the Supreme Court and High Courts in their decisions. Tested on the above observations, we find that the decisions of this Court in the cases of Dr Ashutosh Kumar Upadhyaya v. Sampumonond Sanskrit University and others (supra), and Pankaj Kumar v. University of Allahabad and another (supra), must be taken to be confined to the facts of those cases. They should not be read as laying down a general principle of law applicable to all cases. It may be stated here that when a person holding a post approaches the Court claiming parity of salary/emoluments with another post, he has to establish that the posts in question are similar in all respects. He is not entitled to succeed by merely showing that the nature of duty discharged by him is similar to the nature of duty discharged by the holder of the other post.
26. Coming to the case of Radhey Shyam and others v. State of U. P. and others, 1996 ALJ 1624 (supra), we may state that the principles of law stated in the judgment and the findings recorded therein, in our considered view, are correct. The said judgment has our approval.
27. The further contention that the Executive Council and the academic council held in favour of the petitioner also does not help the petitioner as the same was subject to approval by the State Government and admittedly the State Government refused approval. Such approval has been referred to in the case of Radhey Shyam Bhatt and from the judgment thereof, it is apparent that the said rejection order was available on record before the Division Bench concerned. Nothing has been shown on behalf of the petitioner justifying interference with the said decision of the State Government.
28. After hearing of case was concluded, Shri R, N. Singh, learned Senior Advocate appearing for the petitioner, filed an affidavit of the petitioner attaching thereto a Government Order dated 17.10.1998. On perusal of the Government Order, it appears to us that the State Government has acceded to the demand of the Instructors working in State Universities and has decided to designate the post as lecturer and grant the scale of pay of the lecturer of the University to persons holding the post of Instructors. This document was not before us when the case was heard. We have not heard counsel for the parties on the document. As such this document cannot be taken into consideration at this stage. However, we make it clear that our decision is based on the pleadings of the parties and the documents filed by them when the case was heard. Our Judgment will not, in any way, affect the Government Order dated 17th October, 1998.
29. In view of the aforesaid legal position and in view of the findings that the qualification and mode of recruitment in the case of the instructors and lecturers are different, the claim of the petitioner does not appear to be substantiated.
Therefore, the present writ petition is dismissed.