Umesh C. Banerjee, J.— Leave granted.
2. The issue pertaining to fixation of pay scale, though irksome, continues to be placed before this Court from time to time and this matter is no exception. Significantly, however, one ought to note at this stage only that the matter in issue has already travelled to this Court once before but the issue still persists — surprisingly though but this has turned out to be the trend of litigation in this country.
3. The fact situation of the matter in issue involves the Physical Instructors and Graduate Laboratory Instructors in the employment of different non-governmental colleges in the State of West Bengal. The principal issue for adjudication presently however is whether the scale of pay given to the petitioners is in accordance with the writ of mandamus as issued by the learned Single Judge of the Calcutta High Court and as confirmed by the Appellate Bench of the High Court and stands accepted by this Court in terms of this Court's judgment and order dated 26-7-1994.
4. Before adverting to the issue as noticed above and the rival contentions as raised therefor, a brief factual backdrop would be convenient at this stage.
5. The appellants are science graduates of different universities in the country and have been appointed as Laboratory Assistants in colleges and in addition to their normal duties, the appellants were supposed to assist the teachers and help the students in practical classes, impart instructions to the students in practical classes and perform demonstration work including preparation of the lesson units in the practical classes. According to the appellants these Laboratory Assistants were all along being treated as teaching staff and pay and allowances including the Government's share of dearness allowance were paid to them until the issuance of Government Order No. 288-Education (CS) dated 21-3-1969 wherein Laboratory Assistants of non-government affiliated colleges were treated as members of the non-teaching staff. The effect of such redesignation had a direct impact as regards the payment of dearness allowance and obviously, the same being prejudicial to the interest of the appellants, representations followed against the Government Order but, however, to no effect. Representations were made since the withdrawal of teaching status was otherwise discriminatory as the Graduate Laboratory Assistants had to discharge teaching function as well, apart from the normal conduct of the laboratory work.
6. The factual score depicts that subsequently in August 1983 the State Government redesignated the Laboratory Assistants as Laboratory Instructors — it is on this score that Mr Ganguli, learned Senior Counsel appearing in support of the appeals very strongly criticised. This change of nomenclature according to him was otherwise meaningless as there was neither any conferment of status of teachers nor the grant of any pay scale consistent with the teaching status. The government notification was attributed to be a mischievous deception and a “hoax” — a rather strong criticism. The question therefore arises, whether there was any justification of such an attribute to the government notification dated 10-8-1983; a short question consequently, thus arises — what was the necessity for issuance of such an order — would the change of nomenclature assist in any way the Graduate Laboratory Assistants? A bare perusal of the notification does not however give any reason whatsoever as to the necessity of its issuance — the notification on the contrary makes it clear that there would be no enhancement of pay as also the status, as non-teaching staff would remain unchanged. It is only the word “assistant” which was replaced by the word “instructors” — but does that confer any material benefit on the persons concerned? The answer obviously cannot but be in the negative. It is on this background and upon perusal of the notification, Mr Ganguli's criticism seems to be rather apposite though couched in a very strong language but by reason of the fact situation of the matter in issue — if we may say so, justifiably so. Incidentally, be it noted that Graduate Laboratory Assistants working in government colleges have been given the status and designation of Demonstrators and have been accepted as members of teaching staff. According to the appellants they possess similar qualifications, experience etc. but even though being similarly circumstanced, the Graduate Laboratory Assistants of sponsored and non-government private colleges of West Bengal stand discriminated against the Graduate Laboratory Assistants of government colleges in West Bengal. The earlier writ petition which stands concluded by this Court's order dated 26-7-1994 contained a detailed list of university Acts and statutes wherein “teachers” have been defined to “include the Instructors”.
7. Needless to place on record that by reason of the act of discrimination and having failed to obtain any redress from the respondent State these appellants moved the learned Single Judge of the Calcutta High Court for issuance of a writ of mandamus to treat the Graduate Laboratory Assistants as teaching staff as per the definition contained in different university Acts and also to give them a scale of pay equivalent to that of Physical Instructors. By a judgment and order dated 29-7-1987 the learned Single Judge issued a writ of mandamus upon a detailed judgment, the operative portion whereof is set out hereinbelow:
“… The Rule accordingly is made absolute and the respondent State is hereby commanded by the issuance of a writ in the nature of mandamus to treat the Graduate Laboratory Assistants who have already been redesignated as ‘Laboratory Instructors’ as teaching staff and to pay them in accordance with the existing scale of pay prescribed for the Physical Instructors with effect from 10th August, 1983 with all arrears.”
8. The appeal taken therefrom by the State Government resulted in confirmation of the order by the judgment of the Appellate Bench dated 15-5-1992. The State of West Bengal, however, being aggrieved and dissatisfied with the judgment and order of the Appellate Bench of the High Court moved a special leave petition under Article 136 of the Constitution before this Court and this Court finally on 26-7-1994 refused to interfere with the order and disposed of the matter with a speaking order. Relevant extracts of the same however are set out hereinbelow:
“… the Division Bench of the High Court upheld the findings of the learned Single Judge.
We have heard learned counsel for the parties. We see no ground to interfere with the reasoning and the conclusions reached by the learned Single Judge as upheld by the Division Bench of the High Court. We are, however, of the view that the respondent-petitioners be paid the revised scale of pay, as directed by the High Court, with effect from August 1, 1987 instead of August 10, 1983. Mr A.K Ganguli, learned counsel appearing for the respondents has very fairly stated that his clients are not asking for the pay scale of Lecturer. According to him, the pay scale of Physical Instructors is equivalent to that of Demonstrators and that is the pay scale to which his clients are entitled in terms of the judgment of the High Court.
The arrears shall be paid to the respondents in two instalments, first by the end of February 1995 and the second instalment by August 31, 1995. The appeal is dismissed with the above modifications. No costs.”
9. Significantly another class of Instructors also employed in non-government colleges were called Physical Instructors and prior to 2-7-1984 the Physical Instructors were of two categories insofar as the scale of pay was concerned, to wit: (i) those who had the qualification of a postgraduate diploma or certificate or a degree in Physical Education would be entitled to the pay scale of Rs 550-900; (ii) those who did not possess the above qualifications, Rs 425-700.
10. Subsequently, however, by reason of the University Grants Commission's recommendations the State Government by its Order No. 888 dated 2-7-1984 prescribed in the teaching category only one scale of pay for Physical Instructors and also with a direction that in future all appointments to Physical Instructors would have to be made from those having the qualification of postgraduate diploma or certificate or a degree in Physical Education. The Government Order noticed above in this paragraph revised the existing scale of pay to one composite scale of pay of Rs 700-1600 for Physical Instructors in the teaching category and a perusal of the said order does not leave any manner of doubt as regards introduction of only one scale of pay for Physical Instructors and with a teaching status.
11. Incidentally, during the pendency of the earlier appeal before the High Court the Government by Order No. 579 dated 2-5-1988 directed affiliating universities to take necessary action for conferment of teaching status to the Graduate Laboratory Instructors of non-government colleges and in fact by a subsequent Government Order No. 1039 dated 27-7-1988 the Graduate Laboratory Instructors were declared as members of the teaching staff though, however, without granting any higher scale of pay — obviously in accordance with the writ of mandamus issued by the High Court as noticed hereinbefore. Incidentally the pay scale of Physical Instructors having teaching status was revised by Government Order No. 517 dated 30-4-1990 from Rs 700-1600 to 2200-4000 with effect from 1986.
12. It is at this juncture a further factual recapitulation may be convenient to the effect that this Court vide its judgment dated 26-7-1994 upheld the reasoning and conclusions reached by the learned Single Judge as affirmed by the Division Bench but modified the relief regarding the date of introduction of the revised scale of pay, to wit: from 1-8-1987 instead of 10-8-1983. It was never contended by the State (at least as appears from the records produced before this Court) that the Physical Instructors, holding teaching status, had more than one scale of pay after 2-7-1984. (Neither such a contention could be raised since there was only one scale of pay for Physical Instructors having teaching status.) This aspect of the matter has however been very strongly denied by Mr Reddy, the learned Senior Counsel appearing for the State Government. Mr Reddy contended that there are two definite classes of Physical Instructors, one having postgraduate diploma or certificate or a degree in Physical Education and the second being underqualified Physical Instructors having a pay scale of Rs 425-700 which stands recognised even in Government Order No. 589 dated 25-4-1980. Mr Reddy contended that it has never been revoked by a subsequent government order; whereas qualified Physical Instructors were allowed the scale of pay of Rs 700-1600 with effect from 1-4-1980, the underqualified Physical Instructors' pay scale remained at Rs 425-700 on the same date until it was revised in January 1986 when the underqualified Physical Instructors were given the pay scale of Rs 1390-2970 in terms of ROPA Rules, 1996. Mr Reddy contended that the qualified Physical Instructors, since 1-1-1996, in terms of UGC pay scale, have been given the pay scale of Rs 8000-13,500 and contended rather strongly the existence of a different scale of pay for underqualified Physical Instructors — a sharp difference thus being created between underqualified and qualified Physical Instructors — the latter being governed by UGC scale and the former in terms of ROPA Rules of West Bengal. Mr Reddy contended that UGC pay scale has been offered to those Physical Instructors having the qualification of postgraduate diploma/certificate or degree in Physical Education. Mr Reddy emphasised further that existence of underqualified Physical Instructors with a different scale of pay is hidden in the recording effected by this Court earlier and for convenience sake, is recapitulated once again hereinbelow. The earlier order contained as below:
“Mr A.K Ganguli, learned counsel appearing for the respondents has very fairly stated that his clients are not asking for the pay scale of Lecturer. According to him, the pay scale of Physical Instructors is equivalent to that of Demonstrators i.e pay scale to which his clients are entitled in terms of the judgment of the Hon'ble High Court.”
(emphasis supplied)
13. It is on this score Mr Reddy contended that the statement of the learned Senior Counsel appearing for the Laboratory Instructors was made at the time when the pay scale of the Physical Instructor was equivalent to that of Lecturer and pay scale of Demonstrator was not identical with Physical Instructor (qualified). Thus the observation cannot be followed in respect of Graduate Laboratory Instructors equating with either of the two categories. In the implementation of UGC pay scale of 1973 and onwards, it is mandatory that the teaching posts which were in existence prior to 1-1-1973 would only come under the purview of UGC scale of pay and others under the State rules.
14. Mr Reddy contended that Physical Instructors who possess the qualification of postgraduate diploma/certificate or degree in Physical Education were given the scale of pay of Rs 700-1600 with effect from 1-4-1980 to 31-12-1985. The said scale has been further revised to Rs 2200-4000 with effect from 1-1-1986 which is further revised by UGC to Rs 8000-13,500 which were also the scales of pay of Lecturers and it was specifically stated on behalf of the employees through their Senior Counsel that they are not asking for the pay scale of Lecturer which was Rs 2200-4000 at the material time.
15. It has been further stated that the observation made by the learned Senior Counsel on behalf of the Graduate Laboratory Instructors in this Court is followed in toto by the State Government in allowing the scale of Rs 1390-2970 taking into consideration their teaching status and qualifications.
16. While the submissions of Mr Reddy seem to be rather attractive at first blush vis-à-vis the statement of Mr Ganguli before this Court on the earlier occasion, but the factum of existence of two separate classes of Physical Instructors, one being qualified and the other being non-qualified Physical Instructors shall have to be considered and noticed with certain amount of caution in view of the factual matrix of the matter in issue and the records as are available even in this Court. Some record of proceedings may be useful to be referred to at this juncture:
(i) The order of the learned Single Judge dealing with the present writ petition before the High Court recorded as follows:
“On 24-6-1997 Mr Bihani prayed for time to file an affidavit affirmed by the Secretary to the Government of West Bengal, the Higher Education Department in qualifying the said position regarding two pay scales for Physical Instructors. Referring to the said two pay scales no notification or order could be produced. On the contrary, only one pay scale has been mentioned in the report published by the Higher Education Department.”
(ii) Subsequently on 16-1-1997 the learned Single Judge further recorded the following:
“… under such circumstances, it is not clear on what basis the said affidavit has been affirmed by the said Kalyan Kumar Mandal, Assistant Director of Public Instruction that there is another category of Physical Instructors with BA/BSc/BCom qualifications in the scale of pay Rs 1390-2970.
Accordingly, the said Kalyan Kumar Mandal, Assistant Director of Public Instruction is directed to be personally present before the Court on 22-1-1997 with all records and explain on what basis he has filed such affidavit affirmed on 31-8-1995 mentioning two categories of Physical Instructors. Learned advocate for the respondent State is also directed to produce all records on the next date of hearing.”
Be it noted that the State of West Bengal sought time to produce relevant government records on more occasions than one, as directed, but no such documents were produced even by reason wherefor the learned Single Judge while disposing of the writ petition on 27-3-1998 was pleased to observe in no uncertain terms about the non-production of documentary evidence in support of the contentions as raised and emphasised pertaining to the existence of qualified and underqualified Physical Instructors. Similar contentions were raised by the State Government before the Division Bench of the High Court but without however any documentary support and when this Court heard the special leave petitions after return of notices and by reason of the specific contentions of the appellants herein negating the existence of two groups of Physical Instructors, the learned counsel for the respondents wanted some time to obtain instructions and to file supplementary affidavit. This Court further granted 3 weeks' time from the date of the order to file such an affidavit and the matter was directed to be listed after three weeks (vide order dated 10-4-2000).
(iii) The records depict that this Court by a further order dated 18-8-2000 offered a further opportunity and the order seems to be of some consequence, by reason therefor, the said order is set out in extenso as below:
“Mr A.K Ganguli, learned Senior Counsel appearing on behalf of the petitioners has taken us through the earlier judgment of the learned Single Judge dated 29-7-1987 (p. 96) and of the Division Bench dated 15-5-1992 (p. 99) and of this Court dated 26-7-1994 (at p. 112) and also pointed out that by the Government Order dated 2-7-1984 (p. 345), Physical Instructors have been brought into a single scale of Rs 700-1600 (which has since been revised as Rs 2200-4000) and that the petitioners are entitled to the said scale without any distinction between graduates and non-graduates inasmuch as so far as Physical Instructors are concerned, the above order of 1984 removed any such distinction.
On the other hand, Shri K.K Venugopal, learned Senior Counsel appearing on behalf of the respondents has referred to us an affidavit filed by the Government in the High Court and pointed out that even for Physical Instructors, there was still distinction between these two categories. It was however, pointed out to learned Senior Counsel that this statement in the counter-affidavit, prima facie runs counter to the earlier order of the Government dated 2-7-1984 whereby the distinction between the Graduate Physical Instructors and Non-Graduate Physical Instructors had been removed. At this stage, Shri K.K Venugopal says that he would file all rules/circulars/orders which relate to the pay scale of Physical Instructors and clarify the position.
The State Government may file by way of an affidavit referring to the rules/orders/circulars if they are still maintaining a difference in scales between Physical Instructors in regard to graduates and non-graduates.”
The records of the Government Order however have not seen the light of day even before this Court in spite of such specific directions: is it a mere omission — unfortunately the contextual facts depict otherwise.
(iv) As late as 28-2-2001 this Court again directed as under:
“Mr V.R Reddy, learned Senior Counsel appearing for the respondents wants time to place before the Court the categorisation in two classes of the Physical Instructors referred to at p. 343 continued even subsequently including the revisional pay scale hence he wants to place in a tabular form the second category on which he wants to place the present petitioners. While doing so he should also refer to relevant rules and GOs under which the same continue. He seeks two weeks' time for the same. List these matters after two weeks as part-heard when this Bench sits next.”
17. On this score, a chart has been produced in the Court on 20-3-2001 which however cannot by any stretch be said to be in support of the contention of the State that there were existing two different grades and scales of pay amongst Physical Instructors, one being qualified Physical Instructors and the other being unqualified Physical Instructors.
18. Significantly the annual report as published by the Education Department of the State Government unmistakably records the existence of one grade of Physical Instructors under para 8.16 The annual report details out teachers of government colleges in the manner as below:
“8.16 Teachers of government colleges
Sl. No.
Category of teachers (Basic)
Pay w.e.f
scale 1-1-1986
5.
Demonstrator
Rs 1740-3000
4.
Physical Instructor
Rs 2200-4000
3.
Lecturer
Rs 2200-4000
2.
Professor/Vice-Principal
Rs 3700-5700
(Grade II)
1.
Principal
Rs 4500-7300”
19. Para 8.2.1 also records the details of the administration of non-government colleges as below:
The teachers of non-government colleges are of the following categories (basic):
1.
Laboratory Instructor
Rs 1390-2970
2.
Demonstrator
3.
Physical Instructor
as in government colleges
4.
Lecturer
5.
Principal
20. This itself however negates the contentions as raised by the State. Laboratory Instructors in non-government colleges are termed as teachers with scale of pay Rs 1390-2970 whereas Physical Instructors were also termed as teachers and scale of pay appears to be similar “as in government colleges” i.e Rs 2200-4000. Secondly, in para 8.2.4 revised pay scale of the non-teaching posts (Group B pay scale) has been noted to be Rs 1390-2970. It thus leaves no manner of doubt that whereas the petitioners were shown as teachers of non-government colleges they were in fact granted the scale of pay applicable only to Group B employees belonging to non-teaching staff and thus granted a non-teaching scale.
21. It is on this score, however, Mr Ganguli contended rather emphatically that the High Court fell into a great error in accepting the contention of having two classes of Physical Instructors without any factual or documentary support. The criticism of Mr Ganguli seems to have some force since there was in fact a total failure on the part of the respondents to produce any documentary support in tune with the submission as noticed above. Obviously the records apparently run counter to the submission and findings as recorded by the High Court.
22. The purport of the order of this Court is not very far to seek: there is a definite approval of the reasoning and conclusion as reached by the learned Single Judge as upheld by the Division Bench of the High Court and the alteration is only from 1983 to 1987. Reliance on Mr Ganguli's statement as recorded in the earlier order of this Court that his clients are not asking for the pay scale of Lecturer and would be happy if the pay scale of Physical Instructors is made available to them, does not really alter the situation. Admittedly, Lecturers are a rank higher than the Physical Instructors as the Professor/Vice-Principal is a rank higher than the Lecturer and the Principal two ranks higher than the Lecturers.
23. It is however in terms of the order of this Court as noticed hereinbefore, the State Government on 26-12-1994 has issued a circular obviously in proposed compliance with the order of this Court. Let us however examine the circular and assess the situation ourselves as to the compliance with the earlier order of this Court. The circular reads as below:
“In the circumstances, the Governor is pleased to order that the scale of pay in respect of all Graduate Laboratory Instructors of non-government colleges may be revised to Rs 1390-45-1615-55-2056-66-2445-2970 with effect from 1-8-1987 and the arrears involved on account of revision of their scale of pay paid in the manner as indicated above.
The Governor is further pleased to order that the Graduate Laboratory Instructors of non-government colleges shall continue to enjoy teaching status as given to them in GO No. 1030-Education (CS) dated 27-7-1988.”
24. This circular however stands challenged before the learned Single Judge who was pleased to quash the same upon acceptance of the contentions of the writ petitioners, the appellants herein. The learned Single Judge categorically recorded that the petitioners being Graduate Laboratory Instructors, the question of further classifying them does not and cannot arise and upon reliance of the annual report as noticed above quashed and set aside the circular. The State Government however being aggrieved went before the appellate court and the Appellate Bench however allowed the appeal and opined that the Government Order dated 26-12-1994 cannot be said to be arbitrary or contrary to the decision of this Court, since it is clearly stated therein that Graduate Laboratory Instructors shall continue to enjoy the teaching status. The High Court, however, has failed to appreciate the role of Physical Instructors in the matter of fixation of pay scale in terms of the order of this Court and it is on this count a definite statement has been made even before this Bench that there are existing two definite classes of Physical Instructors, one being qualified and another being unqualified, but there is no factual support thereof. Surprisingly, the basis of the order of this Court has not been delved into by the High Court and the High Court thus clearly fell into an error. Needless to say that in the event there was some documentary support vis-à-vis the stand of the respondent State as regards the existence of two definite grades of Physical Instructors obviously the Government Order issued in December 1994 could not have been found fault with — since the same would have been in consonance with the order of this Court. But there being no factual support therefor, we are not in a position to record our concurrence with the submissions of Mr Reddy as regards the justifiability of making Group B salary available even after conferment of teaching status as upheld by the Appellate Bench of the High Court. The conferment of status as a teacher runs counter to fixation of pay scale of Group B employees since all the other teachers of the government and non-government colleges are placed in the category of teachers. A teacher cannot possibly be allowed a pay scale of a non-teaching post. The same is a contradiction in terms and we need not dilate thereon. The criterion of fixation of pay scale is dependent upon the placement of the person concerned — in the event the placement is in a teaching post obviously one expects to get a pay scale fixed for a teacher and not for a non-teaching member of the staff. Apparently the High Court has not dealt with the issue in this perspective and thus clearly fell into an error in categorising a teacher with a non-teaching pay scale. The circular clearly authorises the Graduate Laboratory Instructors of non-government colleges to continue to have the teaching status but decries the financial benefits therefor! Would the same be not an arbitrary exercise of powers or can it by any stretch be suggested to be otherwise rational and indiscriminatory. This Court at an earlier occasion unequivocally upheld the reasoning of the learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and in the wake of such a finding of this Court question of decrying a pay scale which is otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court. Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.
25. In the wake of the aforesaid these appeals succeed and are thus allowed, the order of the Appellate Bench of the High Court stands set aside and quashed. The order of the learned Single Judge stands restored. The entitlement by reason of the revision be made available from 1-8-1987 as directed by this Court in the earlier judgment dated 26-7-1994. There shall be no order as to costs.