Gujarat High Court
Joshi Tushar Tansukhbhai And Ors. vs State Of Gujarat on 25 February, 2004
Equivalent citations: (2004)2GLR1188
JUDGMENT J.N. Bhatt, J.
1. The main theme and the hub of the entire petition is referable to judicial scrutiny, determination and adjudication of an alleged disparity in the pay-scales of two classes of teaching and non-teaching persons employed in Private Secondary and Higher Secondary Schools aided by the Government in the State of Gujarat challenging the scheme evolved and designed on the basis of grant-in-aid policy for Private Schools and emanated from the Government Resolution dated 02-07-1999. By virtue of the impugned scheme under the Resolution dated 02-07-1999 of the State Government, the appellants (hereinafter referred to as "original-petitioners") have been in employment in various Private Aided Secondary and Higher Secondary Schools as Shikshan Sahayaks (Education Assistants), Vahivati Sahayaks (Administrative Assistants) and Sathi Sahayaks (Co-assistants) and the entire linchpin of the petition, under Article 226 of the Constitution of India, is challenged against scheme only for parity in pay-scales with other employees, who, according to them, are similarly situated and, therefore, they have pressed into service the doctrine of `Equal Pay for Equal Work'.
2. It is their contention that they have been recruited after following due procedure prescribed under the Gujarat Secondary Education Act, 1972, ("Act", for short) as Shikshan Sahayaks, Vahivati Sahayaks and Sathi Sahayaks, on the premise that similarly situated employees, like "Assistant Teachers" and "Administrative Employees", they are also entitled to parity of pay-scale instead of fixed contractual amount paid to them. In short, the contention has been that considering the educational qualification, the nature of work, the process of recruitment, the provisions of law and status, they are eligible and entitled to equal pay-scale, as that of other teachers and employees employed by following the same procedure under the provisions of Act and Rules made thereunder, and recruited on regular basis, and since the impugned Government Resolution, under which they are recruited is a departure from regular employment process and policy under the Act and the Rules, the denial of equal wages and status is derogative, defective, discriminatory, illegal, invalid and violative of Articles 14 and 16 of the Constitution of India.
3. The respondent-Authority has controverted the contentions raised in the petition. It has, `inter-alia', contended that the original petitioners have joined the service after accepting the terms and conditions of the impugned Government Resolution and they are governed by the service conditions of the impugned Government Resolution. It is denied that the original-petitioners are entitled to equal pay-scale. According to the contentions of the respondent-Authority, the Government has implemented the Government Resolution so as to increase the opportunity of employment in the education field and there shall not be any adverse effect. They are bound by the terms and conditions of appointment as laid down in the impugned resolution. Therefore, the question does not arise for violation of the provisions of Articles 14 and 16 of the Constitution of India.
4. The impugned Government Resolution is an outcome of a government policy. With a view to put control and curb on the government expenditure and to reduce day-to-day increase in the provisions beyond planning, the government had formed a Study Group under the Government Resolution No. BMS/1198/13258-G, dated 18-06-1998, for reconsideration of the grant-policy and evolving viable, acceptable and permissible scheme which is under challenge. The Officials, Educationists and representatives of the Management Associations, the Principals' Association, the Higher Secondary Teachers' Association and High School Teachers' Associations were included in the Study Group and on the basis of the recommendations of the Study Group, the Government had framed a policy for recruitment of Teaching and Non-Teaching Staff known as "Shikshans and Vahivati Sahayaks", to obtain the twin objectives, requirements and the resources for generation of employment, and provide more personnel. The Government has, thus, obtained opinion of all concerned in education field by way of a Study Group. Therefore, the impugned Government Resolution cannot be considered as illegal or unconstitutional. Persons appointed as teachers and administrative employees, under the impugned Government Resolution, are paid honorarium as per the rules and regulations, and, therefore, other benefits cannot be given to them as per the terms and conditions of regular employment taken prior to said scheme.
5. The demand of equal pay and increase cannot be granted as their appointments have been made on the condition of fixed salary only for a period of 5 years, and after expiry of period of 5 years service, Shikshan Sahayaks, Vahivati Sahayaks and Sathi Sahayaks shall get all the benefits as regular teachers and employees. The Government Resolution is based on the policy and the economic condition of the State of Gujarat. While framing the policy, the Government has framed the scheme by a Resolution No. BMS/1199/741 [2]-G dated 02-07-1999. The scheme envisaged, by this resolution, is in relation to the policy of recruitment of Education Assistant, Administrative Assistant and Co-assistant in Private Secondary and Higher Secondary Schools, issued by the Department of Education of the State of Gujarat.
6. It is emphasised that earlier, the State of Gujarat decided to provide grant-in-aid to the Private Secondary and Higher Secondary Schools, by virtue of Government Resolution, dated 25-10-1989. Keeping in mind the prevalent economic condition of the State and to curb and control the government expenditure and to reduce day-to-day increase in the provisions beyond planning, a scheme and policy for recruitment to provide more employment on the basis of experts and all concerned, a scheme was required to be evolved. The State Government, therefore, constituted a Study Group for reconsideration and in this connection, the Study Group made several suggestions and recommendations, including to put control on the government expenditure and to reduce day-to-day expenditure in the provisions beyond planning and to evolve a grant policy for the Secondary, Higher Secondary and Private Schools and for that purpose, the Officials, Educationists and Officers of the Management Associations, Principals' Associations, Higher Secondary School Teachers' Associations and High School Teachers' Associations were included in the Study Group. The Study Group submitted report in April 1999. Pursuant to the recommendations of the Study Group and by accepting suggestions made in Point No. 3-A (7) of the Chapter 3 of the Study Group Report, it was decided that the recruitment of Education Assistant, Administrative Assistant and Co-Assistant will be done in the same method in which the recruitment of regular employment of Assistant Teacher and Administrative Employee and Peon, is made. It was, also, decided that after completion of term of 5 years, person, who is employed in the said way, shall be given all admissible benefits in the pay-scale and will be made permanent in the same cadre, as it has been found compatible and in consonance with the requirement and resources of the State and Report of the Experts.
7. Under this scheme --- [1] Education Assistant in the Secondary Section will be paid Rs. 4000/- p.m.; [2] Education Assistant in the Higher Secondary Section will be paid Rs. 4500/- p.m.; [3] The Administrative Assistant in the School will be paid Rs. 2500/- p.m.; and [4] Co-Assistant in the School will be paid Rs.1500/p.m. --- as ad hoc honorarium for a period of 5 years with a condition and subject to the performance of satisfactory service. It was, also, decided that all the recruitments of Education Assistant, Administrative Assistant and Co-Assistant will be made in the ratio of 1:3, as mentioned in Appendix-3 submitted by the Secondary and Higher Secondary Schools.
As per Appendix-3, as and when the vacancies arise, the recruitment of the old teachers and Education Assistants will be made and a number-wise separate register will be maintained and at the time of new recruitment, the recruitments could be done, as per this register. For such recruitments, in case the applications are invited and if no applications from former teachers, clerks or peons are received, then, Assistant Education, Administrative Assistant and Co-Assistant should be recruited on those posts. In the same way, recruitment in the place of old Private Secondary and Higher Secondary School teachers and other posts will, also, be filled up by applying the following conditions:
i. The vacancies of Secondary and Higher Secondary Schools will be filled in the manner and in this method. At the time of recruitment, the recruitment of Assistant Teacher and Assistant Educationalists experienced for more than 5 years will be done in the ratio of 1:3. In the same way, the ratio of clerks and Administrative Assistant experience for more than 5 years will be maintained in the ratio of 1:3.
ii. To maintain the above ratio of 1:3, all the schools will have to compulsorily comply the rules of existing reservation, and as per it, all the schools should maintain registers, as per the Appendix-3 (Cadre-wise separate).
8. Pursuant to the Government Resolution dated 02-07-1999, more than 5000 Shikshan Sahayaks have been appointed in the Secondary Schools and 2183 Teachers are appointed in Higher Secondary Schools and 600 non-teaching staff have been appointed in the cadre of non-teaching staff. It is evident from the affidavit-in-reply that for the total number of appointments in the cadre of Shikshan Sahayaks, the total payable salary would be Rs.36 Crores approximately per year and there would be a burden of Rs. 76 Crores per year towards the payable wages, if the contentions of the petitioners are accepted, so far as, state exchequer is concerned. This is one of the points that is, seriously, argued in course of marathon submissions raised on behalf of respondent-Authority.
9. In view of the conditions mentioned in the appointment letter, the principle of `Equal work and Equal pay' will not be applicable as, "Shikshan Sahayak"
is not equated, as experienced Skilled Teacher. The Central Vth Pay Commission has prescribed different pay-scales and for the different categories of teaching staff. Again, looking to the condition of service and appointment, the Shikshan Sahayaks are going to be promoted or regularised in the category of regular teachers, automatically after expiry of fixed period. The petitioners have also accepted those conditions and, therefore, only after conversion in the regular cadre, at the end of 5 years, they will be entitled to higher pay.
10. Considering the design and the desideratum underlying the entire scheme, the respondent-authority has framed the scheme, in exercise of its policy making discretion, so that maximum number of students could be imparted education while accepting report of experts. The Maharashtra Government has, also, followed similar scheme in identical manner, as stated in the affidavit-in-reply.
11. It is, also, the contention of the State that there are financial constraints which come in the way of imparting education. A balance is struck between the financial constraints and providing education to the maximum number of students of the State. While framing the scheme for Secondary and Higher Secondary Sections, new policy for staff has been adopted and special regulation has been provided upon the Report of experts. If such scheme is not implemented then, the State is not in a position to bear the burden with respect to regular teachers looking to the pay-scales prescribed and fixed for them in view of the recommendations of the last Central Pay Commission.
12. The submissions, which are raised, before us in the course of hearing are, virtually, reiterated in this Appeal. The learned Single Judge has given anxious thoughts and considerations to the said contentions in the impugned judgment. We find that the view taken by the learned Single Judge could not be said to be in any way to be unjust, unreasonable or vulnerable, requiring our interference in exercise of our powers under Clause-15 of the Letters Patent.
13. The learned Single Judge has also placed reliance on the judgment of Single Bench in Special Civil Application No. 5218 of 1998. In the said decision, the scheme, virtually, identical, which was framed for recruitment of Primary Teacher, is upheld. Even a Division Bench of this Court (Coram: K.G. Balakrishnan, C.J., as His Lordship then was, and M.S. Parikh, J.) of this Court in Special Civil Application No. 6155 of 1999 dated 18-08-1999, while dealing with Public Interest Litigation, has, clearly, observed that this is matter coming under the realm of policy decision. Apart from the said aspect, the learned Single Judge has found, rightly, that the the scheme is framed with an object to provide employment to the teachers and to impart education to the maximum number of students in the State of Gujarat. In the impugned judgment, therefore, legality and validity of the scheme and the resolution dated, 02-07-1999, under which it is framed, has been upheld. We, also, find that the ultimate conclusion recorded by the learned Single Judge in the impugned Judgment is justified requiring no interference and departure.
14. Qualified persons appointed on fixed monthly honorarium as "Shikshan Sahayak", "Vahivati Sahayak" and "Sathi Sahayak" in private aided Secondary and Higher Secondary Schools, under the Scheme designed and announced pursuant to the Government Resolution dated 02-07-1999, are "freshers without any experience" as against "Experienced Teachers, Clerks and Peons" employed on regular pay-scale. The Gujarat Secondary Education Act, 1973, as such, does not lay down any provision for monetary grant of any particular pay-scale to be given to the experienced Teachers, Clerks and Peons. Pay-scales of regular staff are being fixed by way of resolutions issued by the Government from time to time. It is not the case of the petitioners that the said Act prohibits the framing of impugned scheme.
15. It is in this context, let it be noted that the State of Gujarat issued a Government Resolution dated 25-10-1989 prescribing and providing grant-in-aid even to Private Secondary and Higher Secondary Schools. It is, therefore, an admitted position that Private Secondary and Higher Secondary Schools are eligible and entitled to grant-in-aid to be provided by the State of Gujarat. The appointment of persons under the impugned Scheme is in accordance with the provisions of Section 35 of the Act. The recruitment process is through the statutory provisions whereby a Selection Committee is appointed for school staff. For the purpose of recruitment of teaching staff of the school other than the Headmaster, there is a Staff Selection Committee having representatives from various concerned Branches of Education, whereas Special School Committee is undertaking the work for the purpose of recruiting the Headmaster also.
16. It is spelt out from the record that there are more than 5400 Private Secondary and Higher Secondary Schools which are being provided 100% aid for pay in addition to Maintenance Grant. As against this, there are 160 Government Schools, wherein, there has been no recruitment till 1998 in teaching as well as non-teaching staff. Effectively and virtually, for all practical purposes, all surplus teachers in private aided institutions have been absorbed with the result that no idle wages are being paid.
17. The contention raised on behalf of the petitioners that classification between two group, like that, group of experienced people, like that, "Teachers", "Clerks", "Peons" on one hand and group of candidates not having experience, like that "Shikshan Sahayaks", "Vahivati Sahayaks" and "Sathi Sahayaks" on the other, is illegal and impermissible and violative of principles of Articles 14 and 16, is meritless. Even if it is considered as a classification, then in that case, there is a reasonable nexus with the object sought to be achieved. For example, experience in the present case is a criteria effecting classification between the two groups. This classification under the impugned scheme is not a whim or a fanciful perception as it is, also, based on a report of the Study Group of various groups of experts. It is, also, clearly manifested in the impugned Government Resolution and affidavit-in-reply filed on behalf of the State.
18. The contention, that the doctrine, "Equal Pay for Equal Work" is violated and the persons employed under the Scheme with less remuneration are exploited, is also without any substance. In case of Randhir Singh Vs. Union of India, (1982) 1 SCC 618, it has been categorically propounded, in the case of Driver Constable, in Delhi Police Force under the Delhi Administration, and the other pay-scales of Drivers employed in various departments of Delhi Administration, that when all things are equal, that is, where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay, merely, because they belonged to different departments. Higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, must reasonably sustain the classification of the staff into two grades with different scales of pay. The view, which we are inclined to uphold as propounded in the impugned judgement, is, fully, reinforced by this decision of the Hon'ble Apex Court.
19. As against that reliance, on the proposition in case of Dhirendra Chamoli Vs. State of Uttar Pradesh, (1986) 1 SCC 637, is of no help to the petitioners. In that case, the petitioners, Class IV employees, engaged as casual workers on daily wages based in Nehru Yuvak Kendra had demanded same salary and perquisites as Class IV employees appointed regularly to the sanctioned posts at different Nehru Yuvak Kendras and it is in that context it was observed that it was difficult to understand how the Central Government could deny to those employees the same salary as Class IV employees regularly appointed against sanctioned posts, whereas in case of State of Uttar Pradesh Vs. J.P. Chaurasia, (1989) 1 SCC 121, the Hon'ble Apex Court refused to accept the plea of parity of pay where classification was based on "Experience". It further held that in service matters, merit or experience could be proper and reasonable basis for classification to promote efficiency in administration. By virtue of experience, as well as, by other means, a person learns and, therefore, the experience can be a basis for classification for efficiency in administration. It cannot be denied that the quality of work performed by persons of longer experience is superior than that of new-comers or freshers. It was, therefore, held in that case that the classification based on Experience is a reasonable classification. It has a rational nexus with the object sought to be achieved as per the factual profile. Not only that, it is further observed that holding it otherwise would be detrimental to the interest of the service itself.
20. In "Jagannath Vs. Union of India", AIR 1992 SC 126, petitioners and other persons working as Compositors in the Government of India Press all over the country had claimed status and parity of salary of Compositors Grade-I in the highly skilled category on the ground that the benefits flowing from the judgment in T.R. Thakur's case to the effect that all the petitioners were performing the duties of "highly skilled Compositors" and as such, Higher Grade could not have been denied to them. The Hon'ble Supreme Court overruled the judgment of the High Court of Himachal Pradesh and made pertinent observations, in para 6, as under:
"Academic pursuit and experience are two primary sources of learning. A Compositor's job in a printing press is a skilled job requiring special technique. In such a job, it would be reasonable to measure the standards of skill by length of experience. The High Court, in our view, fell into error in quashing the classification based on experience arising out of length of service."
21. Reliance is, also, placed on behalf of the petitioners on the decision of the Hon'ble Apex Court in Karnataka State Private College Stop-gap Lecturers Association Vs. State of Karnataka, AIR 1992 SC 677, which is of no avail to the petitioners in view of different factual profile. In that case, teachers appointed temporarily on fixed salary in grant-in-aid colleges, having been continued for years with a break of a day or two every three months, had demanded regularisation as well as parity in wages available to contract teachers and local teachers appointed in the Government. The Hon'ble Supreme Court held that the State of Karnataka had utilised the services of those teachers for 8 to 10 years by paying a meagre salary, when probably during the same period, if they had been paid according to the salary payable to a regular teacher, they would have got much more. The direction by the Government to break service for a day or two and paying fixed salary to temporary employees was deprecated and the practice of management of not making regular section condemned. So is not the case and the factual position in the present case and, therefore, that decision does not help the petitioner.
22. The decision rendered in Andhra Pradesh Teachers & Ors. Vs. State of Andhra Pradesh, 1988 II LLN 600, wherein the petitioners, who were appointed as special teachers under a scheme of fixed payment of Rs. 398/= per month intending to impart basic education, claimed parity of pay contending equal work on par with the regular teachers employed on a pay scale. The Hon'ble Supreme Court has made observations in para 5 in that decision which are very pertinent:
"In the special circumstances indicated, we do not think this is a fit case where the principle of equal pay for equal work should be applied. If it is made so, the scheme itself is bound to collapse and what has been intended to be a mode to educate the illiterate in the society will fail."
23. Be it noted that `Equal pay for Equal work' is, obviously, a philosophy and concept, which requires for its applicability, complete and wholesale identity between the group of employees claiming identical pay-scales and the group of employees who have already earned such pay scales. It is, therefore, rightly, said that the issue or the consideration of equal pay cannot always be insisted upon or highlighted into a mathematical calculation. This proposition is, also, fully supported by the clear exposition of principle laid down by the Hon'ble Apex Court in "State of Rajasthan Vs. Gopi Kishan", AIR 1992 SC 1754 and "State of Haryana Vs. Tilak Raj", AIR 2003 SC 2658.
24. In "Ashutosh Gupta Vs. State of Rajasthan, (2002) 4 SCC 34", it has been observed and held that a person complaining of unequal treatment is obliged to show and prove that there has been unequal treatment. The plea of violation of Article 14 cannot be entertained unless sufficient material is placed on record from which it could be deduced or concluded that there is an unequal treatment. In the present case, the petitioners have not placed sufficient and reliable material to show how there has been unequal treatment.
25. This proposition is, also, very well expounded in case of, "State of Orissa and Ors. Vs. Balaram Sahu and Ors.", AIR 2003 SC 33. There is no dispute about the fact that the impugned resolution is an incarnation and outcome of the policy of the State Government emanated from the impugned Government Resolution dated 02-07-1999 in the backdrop of Government Resolution dated 25-10-1989 providing grant-in-aid to the Private Secondary and Higher Secondary Schools and the Report of the experts.
26. It is not within the domain of any Court to weigh the pros and cons of the policy or to scrutinise it and test the extent of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provisions of law. Needless to mention that when Government forms its policy, it is founded upon number of factors and circumstances arising from relevant factual profile and legal dynamics, including constraints based on its resources. It is, also, based on expert opinion. It is in this context it would be apposite to mention following observations made by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in "State of Punjab and Ors Vs. Ram Lubhaya Bagga", (1998) 4 SCC 117:
"25. ......It would be dangerous if Court is asked to test the utility, beneficial effects of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints."
27. It will be, also, expedient here to refer what Hon'ble Apex Court has observed in case of "BALCO Employees' Union (Regd) Vs. Union of India", (2002) 2 SCC 333, wherein, the policy decision of the Government on disinvestments came to be challenged by the Employees' Union. While upholding the said policy, the Hon'ble Apex Court observed in para 46 as under:-
"It is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical."
28. After having given our anxious thoughts and considerations to the propositions laid down in "BALCO Employees' Union Case" (supra) in relation to the extent and degree of judicial review against the administrative actions and policy decision, we are unable to resist the attraction of mentioning some of them, which are very relevant as highlighted hereinbelow:
i. In a democracy, it is the prerogative of each elected government to follow its own policy. Often a change in the government may result in shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court.
ii. It is neither within the domain of the Court nor the scope of judicial review to embark upon as to whether a public policy is wise or whether better public policy could be evolved.
iii. Courts, ordinarily, would not be inclined to strike down a policy at the behest of a petitioner, merely, it has been urged that a different policy would have been fairer, or wiser or more scientific or more logical.
iv. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution.
v. It is not for the Courts to consider relative merits of different economic policies and consider whether a wiser or better one can be formulated. In matters relating to policies based on economic issues, the Government has, while taking decision, right to "trial and error"
as long as both trial and error are bona fide and within the limits of authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the Courts.
29. It is the contention of the State-Authority that if the scheme envisaged under the impugned Government Resolution is not implemented, then the State would not be in a position to bear the additional burden insofar as the recruitment of regular teachers is concerned. Therefore, it is, further, submitted that in absence of such a scheme, the appointment of 7183 teachers would not have been made possible and many schools would have remained without sufficient teachers and many students would have been deprived of their education. Financial crunch and monetary restraints experienced by the State Government necessitated the framing of such a scheme which can serve the ends of the academics, the students and the exchequer. The scheme of `Equal pay for Equal work', as such, is not a fundamental right vested in any employee, though, it is a constitutional goal to be achieved by the Government.
30. Apart from the fact that there is no basis for grant of parity of scale, as claimed by the petitioners, in absence of acceptable and recognisable duties and responsibilities of the contractually and the regularly appointed teachers, the fixation of pay and determination of parity in duties and responsibilities is a wider complex matter, which is for the executive to discharge. It will be interesting to refer here the observations and directions contained in "Secretary, Finance Department And Ors. Vs. West Bengal Registration Services Association and Ors.", 1993 Suppl. (1) SCC 153 which are required to be considered keeping in mind the financial position and capacity of the State Government to bear the additional liability of revised scale of pay. In that context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, it has been succinctly expounded and propounded in the realm of judicial review that, ordinarily, the Court should not try to delve deep into the administrative decisions referable to pay-fixation and parity of pay. The Courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government, while taking the decision, has ignored factors which are material and relevant for a decision in the matter though it is a settled principle of law that, ordinarily, the matter of fixation of pay and parity of scale should be left to be determined by the executive authority and the Court would, only, interfere when it is unjust with the scheme or the classification is improper or discriminatory.
31. In Secretary (Finance) Department's case (supra), the Hon'ble Supreme Court, while dealing with the question of equation of posts and salaries of government employees, has made the following observations:
"12. We do not consider it necessary to traverse the case-law on which reliance has been placed by counsel for the appellants as 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. Courts must, however, realise that job evaluation is both a difficult and time-consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of an employee (iii) the extent of his responsibility and accountability in the discharge of his duties and functions (iv) the extent and nature of freedoms / limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him
(vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number.
Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitable lead to clubbing of posts and grades which were earlier different and unequal. While doing so, care must be taken to ensure that such rationalization of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g.,
(i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum education / technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and court's interference is absolutely necessary to undo the injustice."
32. As per regulation 24 of the Gujarat Secondary Education Regulations, 1974 ("Regulations", for short), the pay-scales of teaching and non-teaching staff are required to be fixed by the State Government from time to time and prescribed by the Government of Gujarat, as laid down in Sections 34 and 35 of the Gujarat Secondary Education Act, 1972 (Gujarat Act XVIII of 1973).
33. Reliance is also placed on behalf of the petitioners, on the decision of the Hon'ble Apex Court in "Frank Anthony Public School Employees' Association Vs. Union of India and Ors", (1986) 4 SCC 707 and it is contended that `Equal pay for Equal work' must be paid. Otherwise, it would amount to discrimination and violation of Article 14. It is true that the principle of `Equal pay for Equal work' is required to be followed provided factual profile so needs. In this case, principle of `Equal pay for Equal work' was adopted as there was a discrimination in pay and other conditions of service to school teachers on the basis of aided schools and unaided minority schools. It was in that context, it was held that there was a violation of Article 14. There is no such factual scenario in the present case.
34. Next reliance is placed on the decision of "State of Haryana and Anr. Vs. Ram Chander and Anr.", (1997) 5 SCC 253. We have, dispassionately, examined the said decision and in our opinion the ratio propounded in that decision is not attracted to the facts of the present case. To strengthen the plea of `Equal pay for Equal work', the ratio of decision in "Shyam Babu Verma and Ors. Vs. Union of India and Ors.", (1994) 2 SCC 521 is, also, pressed into service on behalf of the petitioners. This decision, upon examination, is found to be not helpful to the petitioners. On the contrary, it is observed in this case, that the nature of work may be more or less the same, but the scale of pay may vary based on "academic qualification or experience" which justifies the classification. It is, therefore, emphasised that the principle of `Equal pay for Equal work' should not be applied in a mechanical or casual manner.
35. 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 employees in different groups excludes applicability of the principle of `Equal pay for Equal work' to them. Before any direction is given by the Court, the claimants or the petitioners have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. In the facts of the present case, also, neither there is any basis nor any scope for holding that there is violation of the principles of Articles 14 and 16. In our opinion, in the facts of the present case, there is no scope for applying the principle of `Equal pay for Equal work', when the petitioners belong to separate category of teachers with reference to experience and more so, when petitioners-employees have accepted the terms and conditions envisaged and evolved in the scheme under the impugned Government Resolution which aims at providing more teaching facilities and also creating more employment opportunities to the deserving personnel despite strained monetary reasons.
36. It is a settled proposition of law that the Judicial Review is directed not against the quality, but is confined to the examination of decision-making process. The Court, in exercise of its power of Judicial Review, is obliged to address itself the following questions when the Public Law Review against the administrative decision to the Scheme or Policy is under challenge:
i. Whether a decision making authority exceeded its powers?
ii. Whether the authority has committed an error of law?
iii. Whether the authority has committed a breach of principles of natural justice?
iv. Whether the authority has reached a decision which no reasonable person would have reached?
v. Whether the authority has abused or misused its powers?
37. The basic principle of Judicial Review is that it is only the decision making process and not the type, kind and quality of the decision, which is reviewable unless the decision or the impugned action of the administrative authority is vitiated by arbitrariness, unfairness, illegality, irrationality or when it is such as no reasonable person, on proper application of discretion, could make such a decision, notwithstanding that the Court would not be able to substitute its own opinion for that of the experts.
38. The Court will not, normally, interfere with its exercise and cannot impose its own opinion, how and in what manner, it should be done. In the exercise of the power of Judicial Review of the decision of an Authority, the Court is concerned with the legality of the procedure followed and not with the type and utility of the order. Power of Court in Judicial Review is limited. Needless to state that all powers have legal limits. In Judicial Review of the discretionary administrative action, the Courts are not sitting as Courts of Appeal and do not meddle with or probe into merits of the discretionary decisions. The Courts have no jurisdiction to substitute their views for that of discretionary authority, if otherwise they are valid and legal.
39. The scope and parameter of Judicial Review has been succinctly crystallized by various judicial pronouncements and legal position about the extent of power of judicial scrutiny of the exercise of the administrative and discretionary powers. It would be appropriate to highlight some of the following important parameters for Judicial Review in the purported exercise of its discretion, in that the authority:
- must not do what it has been forbidden to do, nor must it do what it has not been authorised to do,
- must act in good faith,
- must have regard to all relevant considerations and must not be swayed by irrelevant considerations,
- must not seek to promote purposes alien to the letter and the spirit of the legislation that gives power to act,
- must not act arbitrarily or capriciously,
- must not make a judgment on the basis of erroneous assumption of facts on which the discretion could be validly exercised,
- must apply its mind to pertinent and proximate matters only, eschewing the irrelevant and remote, when it exercises discretion on its subjective satisfaction,
- must not act under the dictation of any body or disable itself from exercising its discretion in each individual case,
- must exercise its discretion (It will be compelled by the court to exercise the discretion, though not to be done in a particular manner).
40. No doubt, the Judicial Review, in the realm of Public Law, is the heart of judicial mechanism in our Constitution. The main grounds of Judicial Review, as stated earlier, are illegality, irrationality and procedural impropriety. While it has been stated that the grounds of Judicial Review define precise definition, most, if not all, are concerned with either the process by which the decision was made or the degree and scope of the power of decision maker. Let it be mentioned that initial source of power for Judicial Review was Common Law and that the overall ground of Judicial Review is that the repository of Public Power has breached the limit placed upon the grant of that power.
41. The concept and philosophy of Judicial Review is widening. It can be used against the judicial error and error of law. Even the jurisdiction and such exercise is reviewable as not competent or authorised. Judicial Review is a great weapon in the armory of Administration of Justice. The doctrine of Judicial Review is an integral part of judiciary and Constitutional process and mechanism and which is the basic feature of our Constitution.
42. Judicial Review has two important functions:
i. Testing or review of legitimising governmental and legislative actions.
ii. To protect the constitution against any undue encroachments by the Government.
Both these functions are interconnected and related. Justice Douglas characterised Judicial Review as "tailoring an act to make it constitutional" and explains further that if construction of the act or action is possibly that will save it from being illegal, unconstitutional or infirm, the Court will adopt that construction. This is a part of judicial strategy in deciding the legality and illegality of constitutional controversies.
43. All actions of the State or its authorities, i.e. bureaucracy, legislation or administrative domains, ought to be carried out compatible to the constitutional provisions and, also, within the defined limits and earmarked parameters prescribed by law and constitutionalism. It is very obvious from our constitution that the power of Judicial Review is, therefore, one of the basic features of Indian Constitution. Our Constitution has provided an independent mechanism of Judicial Administration which has been vested with the power of Judicial Review to determine the illegality of the executive action or any impugned acts. Judiciary has a constitutional and solemn duty to check and keep different branches of State Administration within the limits of their powers conferred upon them by law or Constitution. The provisions of Article 32 and 226 of the Constitution of India confer judiciary with the power of Judicial Review. Judiciary is, thus, the guardian and has to uphold the constitutional values and to enforce the Constitutional limitations.
44. While summing up the legal profile, let it be highlighted that the power of Judicial Review of administrative action can be exercised on the following grounds:
i. Illegality: This means that the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it.
ii. Irrationality: This means that the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at such a decision.
iii. Procedural impropriety: This means that the procedure for taking administrative decision and action must be fair, reasonable and just.
iv. Proportionality: This means in any administrative decision and action the end and means relationship must be rational.
v. Unreasonableness: This means that either the facts do no warrant the conclusion reached by the authority or the decision is partial and unequal in its operation.
45. It would be useful and expedient to highlight and herald following points, also, in a nutshell while concluding the entire factual profile showing justification for the views propounded and the ultimate conclusion reached by us hereinafter:
i. The impugned scheme under the concerned Government Resolution dated 02-07-1999 is evolved and designed in exercise of administrative discretion. Scheme and policy making power is not prohibited or contrary to the provisions of the Act as well as, Regulations.
ii. The plea for parity of pay-scales for separate permissible class of employees for the obvious reasons stated in the scheme and the resolution and the entire spectrum of facts on record, is not supportable and acceptable.
iii. A classification of teaching and non-teaching employees under the impugned scheme of the Resolution of the Government, dated 02-07-1999, is not violative of provisions of Articles 14 and 16, as challenged.
iv. The reasonable and permissible classification is based on the recommendations made in the Report by the experts appointed by the Government in the Study Group having representation from all concerned faculties and sections.
46. As stated earlier, pursuant to the Government Resolution, dated 02-07-1999, more than 5000 Shikshan Sahayaks have been appointed in the Secondary Schools and 2183 Teachers have been appointed in Higher Secondary Schools. The impugned Scheme is, thus, devised to meet the twin objectives of requirements of academics, as well as, generation of more and more employment opportunities for the unemployed educated personnel and, also, to see that the strained economic resources are not adversely further affected. It is, thus, aimed at providing more and more number of qualified teachers and non-teaching persons out of the government funds by providing grant-in-aid to the Private Secondary and Higher Secondary Schools, which is not otherwise obligatory upon the State. The State-Authority, by virtue of its Resolution dated 18-06-1989, took the bold decision to provide grants to the Private Secondary and Higher Secondary Schools in the State of Gujarat and after effective consultation with all concerned and considering the report of the experts, devised a scheme, which has rational, logical, economical, educational and reasonable basis. The classification of two groups, one based on the scheme and the other group appointed on regular basis on pay-scales, has full justification and reasonable nexus with the object sought to be achieved and cannot be said to be hostile or discriminatory for the purpose of parity of pay, as both groups stand on different footing, with reasonable classification, which is based, also, on the foundation of Experience, which is permissible and legal. In the former group, the appointment in the employment is without Experience, but with certainty and security for regular employment, after the expiry of 5 years' period, whereas in the latter group, Experience is given due weightage.
47. There is no element of arbitrariness in the decision of the respondent-Authority to implement two scales of pay for two categories of teachers. Nothing has been, successfully, shown or spelt out from the record which would even remotely indicate the violation of any of the provisions of the Constitution warranting our interference in exercise of our Constitutional, prerogative, extraordinary, discretionary, equitable writ jurisdiction. We find no substance in the challenge against the impugned judgment of the learned Single Judge.
48. After having taken into consideration the submissions raised before us, questions canvassed and catalogue of factual and legal profile, design and desideratum of the provisions of the impugned Government Resolution, dated 02-07-1999, intent, purpose of the Government in devising the Impugned Resolution, prevalent academical background, socio-economic dimensions, empirical study of the problems by the experts for the purpose of evolution of scheme for employment and requirements of teachers in Private Secondary and Higher Secondary Schools and aims and objects of the Impugned Resolution and permissibility of classification, We are of the clear opinion that the challenge against the impugned Government Resolution on the ground of disparity of pay and violative of Articles 14 and 16 of the Constitution is meritless and without any substance. The Impugned Government Resolution is upheld and we confirm and affirm the views of the learned Single Judge in the impugned judgment and, the Letters Patent Appeal, therefore, shall stand dismissed leaving the parties to bear their own costs. Notice is discharged. However, the recommendations made by the learned Single Judge in the impugned judgment are quite weighty and respondent-Authority shall consider seriously.
49. In view of the above judgment in the Letters Patent Appeal, there will be no order in Civil Application. The Civil Application shall, therefore, stand disposed of accordingly.