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Abdul Khader, Miss A. Subhashini and Girish Chandra for the Respondent in WP. 587/75.

K.G. Bhagat, Addl. Sol. General and Ms. A. Subhashini for the Respondent in RP. No. 4/77 D. Goburdhan and C.V. Subba Rao for Respondent in CA. No. 1043 of 1981.

B.N. Lokur, and C.N. Ratnaparkhi for Respondents 2-7 in WP No. 587 of 1975.

Judgment of the Court was delivered by DESAI, J. In this group of writ petition, civil appeal, special leave petition and review petitions; a common question of law is raised whether Indian Council of Agricultural Research (`ICAR for short) and its affiliate. Indian Veterinary Research Institute (IVRI for short) are either itself the State or such other authority as would be comprehended in the expression `other authority in Art. 12 of the Constitution ?

Re: W.P. No: 587/75 :

Petitioner No. 1 was Professor of Animal Pathology, petitioner No. 2 was Professor of Animal Genetics and petitioner No. 3 was Professor of Veterinary Parasitology, all attached to IVRI. Six posts of Professors one each in Animal Pathology, Animal Genetics, Veterinary Parasitology, Animal Nutrition, Bacteriology and Physiology were created on the introduction of the post-graduate wing in IVRI in 1958. At the relevant time the post of Professor carried the scale of Rs. 700- 1250. Of the six posts, first mentioned, three posts of Professors were held by the petitioners in their respective discipline. On the introduction of the scales recommended by the University Grants Commission, the pay scale attached to the post of Professor in IVRI was revised to Rs. 1100-1600. After the upward revision during the year 1970-71, the cadre of Professors in IVRI was expanded by creating six new post of Professors in various disciplines. Surprisingly, act of the petitioners, who was already holding post of Professor, was not given the benefit of the upgraded scale attached to the post of Professor while on the other hand the new incumbent recruited in the newly created posts in the year 1970-71 were awarded the revised scale of Rs. 1100-1600. This led to the disturbance in the inter se seniority in the cadre of Professors and manifested an anomalous position that the old incumbents of the posts of Professors such as petitioners, continued in the pre-revised scale of Rs 700- 1250 while the new incumbents were put in the revised scale of Rs 1100-1600 both having the designation of Professor and there is no appreciable difference in the qualifications attached to the post. When this was brought to the notice of the authorities concerned, the ICAR with the concurrence of the Ministry of Finance resolved as per decision dated April 6, 1972 to award the revised scale of pay attached to the post of Professor to the petitioners, but this was subject to the condition that it would not be automatic but the existing incumbents of posts may be considered for revised scale along with other suitable persons. It was implicit in the condition prescribed that the petitioners will have to stand in competition with others applications, if there be any, and go through the hazard of a fresh selection for the post each one was already holding. This is the first grievance voiced by the petitioners in the writ petition contending that the petitioners were qualified for the posts of Professor and that each of them was holding the post from 1963, 1970 and 1970 respectively. The petitioners made various representations basing their claim inter alia on fair play, equality of opportunity in the matter of public employment and equal pay for equal work as well as the provision contained in Fundamental Rule 23. The petitioners also contend that they fulfil the minimum qualification prescribed for the post after upward revision of the pay- scale, and they have the requisite experience and that they are performing the same or identical duties as are being performed by newly recruited Professors in sister disciplines and that denial to them of the revised pay scales for the post of Professor apart from being discriminatory and violative of Art. 14 is thoroughly arbitrary and unjustified. It appears that pursuant to the decision dated April 6, 1972, the ICAR issued an advertisement on May 21, 1974 inviting applications for the post of Professor in Animal Pathology, Animal Genetics and Veterinary Parasitology in the revised scale of Rs. 1100- 1600. These were the posts already held by petitioners. The advertisement set out the essential and desirable qualifications for each post. Petitioners contend that the duties pertaining to the post of Professor in the upgraded scale are the same as performed by the petitioners and that this action of inviting fresh applications for post already held by the petitioners disclosed a cover attempt to remove the petitioners from the posts held by them for years. Petitioners further contend that only three posts held by the petitioners have been advertised inviting the applications for fresh recruitment while there were others who were holding posts of Professors in the pre-revised scale and to whom benefit of automatic upward revision was granted and this disclosed not only the bias of the ICAR but also subjected the petitioners to gross discrimination. Serious allegations of bias and malafide have been made against respondent No. 6, the Director of IVRI, and Director General of ICAR, which need not be set out here. It may, however, be stated that though the various functionaries working in IVRI and ICAR are highly qualified persons, professional rivalry had led to such poisoning of the atmosphere and character assassination had become so rampant and the environment had become so suffocating that the Government of India had to appoint a Committee presided over by late Shri P.D. Gajendragadkar, retired Chief Justice of the Supreme Court with wide terms of reference which amongst others included the recruitment and personnel policies of ICAR as well as Institutes and Centres working under it and to suggest measures for their improvement. It is alleged that absolutely incorrect, improper and prejudiced entries are made in confidential reports with a view to harming the career of the persons who have fallen from the grace of the Director and that therefore, the Court should lift the veil of the so-called society and peep into the realities of life. The petitioners accordingly prayed for an appropriate writ, order or direction to quash the advertisement dated May 21, 1975 inviting applications for the posts of Professors in three subjects already held by the petitioners and to confirm the petitioners in the aforementioned posts and to give them the benefit of the revised scale from the date from which it was given to Professors in sister disciplines and to quash the adverse entries in the confidential reports of the three petitioners. On these averments petitioners filed the present writ petition under Art. 32 of the Constitution. Re : S.L.P. No. 2339/75 with R.P. No. 4/77 :

Re: W.P. No. 58/75 : In this writ petition, the substantial grievance is that even though the three petitioners were respectively holding the post of Professor in Animal Pathology, Animal Genetics and Veterinary Parasitology from 1963, 1970 and 1970 respectively, when the pay-scale for the post of Professor on the recommendation of the University Grants Commission underwent an upward revision to Rs. 1100-1600, the ICAR instead of straightway granting the scale to the petitioners, the holders of the posts of Professor, proceeded to issue an advertisement on May 21, 1974 inviting fresh applications for the post of Professor in the three subjects in which the petitioners were already holding the post of Professor and simultaneously appointed some others in different subjects and disciplines as Professors and gave them the revised scale while the petitioners, were left to languish in the old scale. According to the petitioners, apart from gross discrimination in the matter of equal pay for equal work the direct consequence of this unfair and arbitrary action of the third respondent was the adverse affectation in the seniority in the cadre of Professors because those who were appointed in the revised scale scored a march over the petitioners who continued to languish in the preserved scales. Petitioners contend that the situation is recreated which was adversely commenced upon by the Minister in the Parliament that the recruitment policy adopted by ICAR necessitates a scientist to apply for posts and being interviewed by selection committee with attendant hazard and consequent frustration. Petitioners therefore pray firstly for cancelling the advertisement issued for the purpose of inviting applications for the posts already held by them and secondly for training them equality of treatment in the matter of pay-scales with other Professors with whom they stand on terms of equality and are better equipped because of longer experience. Petitioners say that in 1970-71 six posts of Professor were created in the revised scale of Rs. 1100-1600 at IVRI in the discipline of Poultry Science, Poultry Pathology, Veterinary Public Health (Calcutta Centre of IVRI), Biochemistry, Epidemiology and Veterinary Public Health (IVRI Centre). The revised scale was sanctioned for these newly created posts pursuant to the reccom-

mendation of the University Grants Commission. Let it be made distinctly clear that the revised scales were meant for the post of Professor in IVRI not for the post in any particular discipline. Petitioners were holding posts of Professor in IVRI, and therefore the petitioners contend that the posts of Professor held by them would be governed by the revised scale effective from the date on which new posts were created and filled in, in the revised scale. Respondents' response to this contention is that ICAR informed the Director of IVRI as per its letter dated January 20; 1971 that three posts of Professor in the scale of Rs. 1100-1600 in Veterinary Bacteriology, Animal Nutrition and Animal Genetics have been sanctioned subject to the condition that the existing posts of Professor obviously in the same disciplines in the scale of Rs. 700- 1250 stand abolished. Shorn of embellishment, it would mean that the posts in the aforementioned three subjects shall henceforth carry the revised scale of Rs. 1100-1600. The respondents assert that the revised scale was not be automatically granted to the existing holders of the posts but they would be considered with other applicants for appointment in the higher scales, if they are otherwise suitable. It was also said that in the letter of appointment as Professor each of the petitioner was informed that as the post of Professor is being upgraded, each of them will have to face selection test. Letter of appointment dated March 25, 1970 in respect of petitioner No. 2 though relied upon was not on the record but when produced in the course of hearing with an affidavit, it belied the statement. There is nothing in the letter of appointment of each of the petitioners that then the revised scale for the post of Professor will be introduced, the incumbent of the post will have to face a fresh selection. It is not clarified whether the three posts of Professor in Veterinary Bacteriology, Animal nutrition and Animal Genetics in the pre-revised scale were already filled in and whether the holders of the posts got the revised scale without any fuss of fresh selection on the part of the respondents. The counter- affidavit on behalf of respondents Nos. 1,2,3,4,5 and 11 is conspicuously silent on this point. However, it is contended that the qualifications for post of Professor while sanctioning the revised scale was altered in as much as when the post of Professor carried the scale of Rs. 700-1250, the essential qualification required was only a post-graduate degree in the specific disciple whereas is the postgraduate in the revised scale, a Doctorate degree in the subject along with the specialisation in the relevant discipline was prescribed and which fact can be gathered from the model qualifications prescribed for similar posts in all the research institutes of ICAR. It was further asserted that earlier the minimum experience required was about 5 years whereas it was revised to 7 years. Nothing would be more misleading than this eye was performance which really hides the true intendment namely, to exclude the present incumbents of the posts of Professor and to expose them to a competition with same rank outsiders who may as in the case of Dr. S.L. Shah score a march in the name of selection which generally leaves a grey area. Petitioners Nos. 2 and 3 do hold a Doctorate in their respective discipline with experience extending more than 7 years in the discipline. Petitioner No. 1, who does not hold a Doctorate has to his credit M.R.C.V.S. which has been recognised by the Government of India as possessing post-graduate qualification in Veterinary and Animal Sciences and teaching posts including the post of Director of IVRI and continue to be recognised as guide/teacher for post-graduate degree courses. The subterfuge was to expose the petitioners to a fresh selection test with all its consequential uncertainties and that was the exact thing found by Dr. Gajaendragadkar Committee. That is why it can be said that like the true Bourbons 'ICAR has learnt nothing and forgotten nothing.' The hard fact is that the petitioners were holding the posts of Professor when the revised scale became effective. In the letter dated January 20, 1971 sanctioning revised scale for the post of Professor, there is not even a whisper that the existing incumbent will be denied the benefit. In fact, it is well known that the University Grants Commission regularly recommends revised scales for every plan period for teaching posts and the revision takes note of inadequate scales sanctioned till the date of revision. The only justification offered by the respondents for denying the petitioners the benefit of the revised scale is to be found in the counter-affidavit of Dr. M.S. Swaminathan. It is contended that the newly created post in the cadre of Professor is not the same as the then existing post and that there was marginal revision in the qualifications for not the posts of Professor in the revised scale and that petitioners were not discriminated because they were given an opportunity to contest for the posts in the revised scale. The justification is too flimsy to merit any serious consideration more so in view of the fact that it is difficult to envisage a situation in such institutes, undertaking advance research in Agriculture and Animal Husbandry where persons holding Doctorate qualification and enjoying the status of the post of Professor would be governed by two different scales even though the duties, responsibilities and functions in various sister disciplines are identical. In such a situation Art. 39(d), trust assist us in reaching a fair and just conclusion. Elaborating the underlying intendment of Art. 39(d), Chinnappa Reddy, J. in Randhir Singh v. Union of India & Ors.(1) observed that construing Arts. 14 and 16 in the light of the Preamble and Art. 39(d), the Court was of the view that the principle 'equal pay for equal work' is deducible from those Articles and may be properly applied to the cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. The case in hand is a glaring example of discriminatory treatment accorded to old experienced and highly qualified hands with an evil eye and unequal hand and the guarantee of equality in all its pervasive character must enable this Court to remove discrimination and to restore fair play in action. No attempt was made to sustain the scales of pay for the post of Professor on the doctrine of classification because the classification of existing incumbents as be distinct and separate from newly recruited hand with flimsy change in essential qualification would be wholly irrational and arbitrary. The case of the petitioners for being put in the revised scale of Rs. 1100-1600 from the date on which newly created posts of Professors in sister disciplines in IVRI and other institutes were created and filled in revised scale is unanswerable and must be concede.