This is a petition under Article 226 of the Constitution, which has been filed before this Court under the following circumstances:- 2. The petitioner Sri Rukmini Lal Acharjee applied for the post of the Principal, Cottage Industries Training Institute, Cauhati in response to an advertisement calling for applications for the post. It appears that the advertisement indicated that minimum qualification for the post would be graduation in Engineering. On the date of his application, the petitioner was not qualified as a graduate in Engineering. As apparently, there was a paucity of applicants and no suitable candidate was available except the petitioner, the Government in the circumstances relaxed the minimum educational qualification for the post and appointed the petitioner, notwithstanding the circumstance that he was not a graduate. The post of the Principal carried & grade of Rs. 200-200-220 (Conf.) -20-400-(E. B.)-25-600 per mensem. The petitioner had put in a number of years service in the appointment and was drawing pay in that grade. Subsequently the first Pay Committee was appointed, which gave its report but this report did not cover the post or the Principal of the Cottage Industries Training Institute, Gauhati. Later on, however, the Government of Assam issued a notification dated 17-2-60 fixing two separate scales for the post of the Principal. The first one was the scale which was originally in force when the petitioner was appointed and the second one was a revised scale of Rs. 225- 20-425-EB-25-600 with the qualification that this was for holder of a degree in Engineering. After this, the petitioner was refused to be paid the revised scale of Rs. 225 to Rs. 600 mentioned above, on the ground that he was not an engineering graduate. The petitioner contended that as he had been accepted' as suitable for the post after relaxation of the minimum qualification and as at that time there was only one grade, any revision of that grade should go to his benefit. 3. Subsequently, the second Pay Committee gave its report sometime in 1964 and the Government granted the revised scales of pay to the employees under the State Government of Assam as a result of this Pay Committee's report. In the 1964 revised scales of pay granted by the Government, there is an entry with regard to the post of the Principal, Cottage Industries Training Institute, with which we are now concerned in this case.
In the 1964 revised scales of pay granted by the Government, there is an entry with regard to the post of the Principal, Cottage Industries Training Institute, with which we are now concerned in this case. The entry occurs at page 104 of 'Resolution on the Report of the Assam Pay Committee, 1964 and the Assam Services (Revision of Pay) Rules, 1964 with Schedule' published by the Government of Assam and is as follows:- "Name of the Proposed deaig- Existing scale. Revised scale. Remarks, service or post. nation. (1) (2) (3) (4) (5) Rs. Rs. Principal, Cot- Principal, Cot- 225.20-425- 550-40-830- Industries of- tage Industries tage Industries (E. B J-25-600. (E.B.)-45-l,100. ficer (Techni- T rain ing In- Training In- cal) Cadre etitute. stitute. post." At page 3 of the above-mentioned Government publication granting 1964 revised scales of pay to the State Government employees the expression 'existing scale' has been defined as follows:- "existing scale means the scale of pay applicable to a Government servant in respect of, the post held by him in a substantive or officiating capacity on the date on which he is, under these rules, entitled to draw pay in the revised scale". 4. On the ground that the petitioner's existing scale was only Rs. 200-200-220 (Con.)-20-400-EB-25-600 and not Rs. 225-20-425-EB-25-600, the scale revised under the Government Notification dated 17th February, 1960, the petitioner was refused payment of salary under the 1964 revised scale of pay. The contention of the Government is that as the revised scale only applied to the persons drawing pay in the existing scale and as the petitioner was not being paid in the scale shown as the existing scale in the report, the petitioner could not be paid according to the 1964 revised scale. 5. It may be pointed out that once the Government relaxed the minimum qualification of an engineering degree as advertised by them and appointed the petitioner to the post in the same grade, it is not open to the Government, unless there is a contract to the contrary between the parties, to contend that the petitioner was not graduate and, therefore, should not be regarded as a person eligible to hold the post of the Principal.
In our view, once the Government had relaxed the minimum qualification and accepted the petitioner for appointment, it is not open to them to make use of this defect in the qualification of the petitioner as a ground for interfering with his prospects in the service. Therefore, in our considered opinion, if and when the State Government revised the original scale applicable to the post, namely Rs. 225-20-425-EB-25-600, the petitioner ipso facto became entitled to the 1964 revised scale of pay, as he was appointed to the post and holding it for a long period of years, and apparently there is nothing against him in the course of discharge of his duties. 6. This revised scale, which should have been rightly applied to the petitioner, must be treated as an existing scale for the purpose of 1964 revised scale of pay, and if this is done, there can be no difficulty in holding that the petitioner became entitled to the revised scale shown at page 104 of the Government publication, namely Rs. 550 -40-830-(EB)-45-1,100. The utmost that can be said about the notification of the Government dated 17th February 1960 introducing the difference of pay scales applicable to non-graduates and graduates, is that it could only be allowed to apply to new incumbents, who knowing the difference, would be accepting the appointment, and, in our opinion, it certainly cannot be held to apply to the persons already accepted to the appointment holding the post and rendering service therein. 7. We are assured that the report of the Assam Pay Committee, 1964, as accepted by the Government has been incorporated in the Rules framed under Article 309 of the Constitution and, therefore, this has both constitutional and statutory force and can be rightly applied to the petitioner. 8. Our attention has been drawn by the learned Government Advocate to a Government notification issued on 12th May 1967 during the pendency of this Civil Rule purporting to revise the pay scale of the petitioner to a slightly better grade than the grade he was drawing. We consider that such amendments in a case pending before the High Court ought not to have been reported to by the Government without reference to this Court. 9.
We consider that such amendments in a case pending before the High Court ought not to have been reported to by the Government without reference to this Court. 9. In the result we direct that |he petitioner should be paid the 1964 revised scale of pay of Rs: 550-40--830-(EB)-45- 1,100 as shown at page 104 under the publication of the Government mentioned above. The rule is thus made absolute and the petition is allowed with costs. Advocate's fee Rs. 100. Petition allowed