M. B. SHAH, J. ( 1 ) PETITIONER No. 1 is ESIS Para-medical Staff Association Ahmedabad and is a registered trade union. Petitioner No. 2 is General Secretary of Petitioner No. 1 and is also an Assistant Pharmacist in the Employees State Insurance Scheme. The petitiooners have prayed that the respondents be directed to fix the pay of all the Assistant Pharmacists employed under the Directorate of Medical Services (ESIS) in the pay-scale of Rs. 330-560 with effect from 1st January 1973 under the Gujarat Civil Services (Revision of Pay) Rules 1975 It is also prayed that the orders issued by the respondents introducing pay scale of Rs. 260-400 as the revised scale of pay for any of the Assistant Pharmacists employed under the Directorate of Medical Services (ESIS) by classifying them as Compounders (unqualified) be quashed and set aside. By amendment it is further prayed that 9th Amendment in the Gujarat Civil Services (Revision of Pay) Rules 1975 published on 7th March 1992 whereby the pay-scale of Rs. 260-400 is sought to be substituted for some of the Assistant Pharmacists by introducing the classification of Compounders (unqualified) employed under the Directorate of Medical Services (ESIS) to declared to be null and void. ( 2 ) IT is the submission of the learned advocate appearing on behalf of the petitioners that the distinction between qualified and unqualified in the case of Assistant Pharmacists made by the respondents is illegal and arbitrary because- (i) in the Directorate of Medical Services (ESIS) there is only one cadre of Assistant Pharmacist; Compounders (qualified) or Compounders (unqualified) are appointed as Assistant Pharmacists; (ii) the duties performed by the Assistant Pharmacists and by the Compounders (unqualified) are identical; (iii) they are inter-se transferable. It is also pointed out that the Second Pay Commission (Desai Pay Commission) had not made any distinction for the Assistant Pharmacists working under the Directorate of Medical Services (ESIS ). Therefore the order passed by the State Government differentiating the Assistant Pharmacists by classifying them as Assistant Pharmacist and Compounders (unqualified) is wholly arbitrary. The State Government should not be permitted to tinker with the Second Pay Commission Report. ( 3 ) FOR appreciating the aforesaid contentions it would be necessary to refer to the facts pertaining to the appointment of Assistant Pharmacists in the Directorate of Medical Services (ESIS ). The State Government should not be permitted to tinker with the Second Pay Commission Report. ( 3 ) FOR appreciating the aforesaid contentions it would be necessary to refer to the facts pertaining to the appointment of Assistant Pharmacists in the Directorate of Medical Services (ESIS ). On 16th June 1965 the State Government passed a Resolution in view of the introduction of the Pharmacy Act by the Government of India which prescribed that only the Pharmacists recognised with the qualifications prescribed under the law could work as dispensers whereas the local qualifications of Compounders would not be valid. Therefore the Government sanctioned the following scheme to get the suitable personnel temporarily for the ESI Schemes which have been implemented in the State. "the candidates to be selected for the posts of compounders in the ESI Scheme should be given some short terms refresher training at Civil Hospitals. The period of training will be about 2 to 3 months in the job of compounding. The candidates will be categorically informed that the training will not give them any right for registration for any sort of practice that the job is temporary till sufficient number of Pharmacists could be found to replace them say for a period of 1 to 2 years. There should be a committee for selection of candidates and also for drawing on their requirements which they are supposed to fulfil before being employed as compounders". ( 4 ) THEREAFTER by Government of Gujarat Panchayats and Health Department Resolution dated 17th August 1965 the Government sanctioned staff as mentioned in the said Resolution on temporary basis for opening of 12 sub-stores for distribution of drugs and medicines to the insured workers under the panel system of the ESI Scheme upto 28th February 1966 in the first instance for each depot. By the said Resolution one post of Senior Pharmacist (qualified) in the pay-scale of Rs. 125-255 and two posts of Assistant Pharmacist in the pay-scale of Rs. 100-170 were sanctioned along with other posts. Thereafter by Government of Gujarat Panchayats and Health Department Resolution dated 3rd September 1965 the State Government decided to set up a separate Directorate named as Directorate of Medical Services (ESIS) under the charge of the Director of Medical Services (ESIS ). In the Statement I annexed to the aforesaid Resolution under the heading of Dispensaries various posts are mentioned. Thereafter by Government of Gujarat Panchayats and Health Department Resolution dated 3rd September 1965 the State Government decided to set up a separate Directorate named as Directorate of Medical Services (ESIS) under the charge of the Director of Medical Services (ESIS ). In the Statement I annexed to the aforesaid Resolution under the heading of Dispensaries various posts are mentioned. It includes the post of Compounder. It provides for appointment of Assistant Pharmacist and Compounders in Alopathic section and appointment of Compounders in Ayurvedic section in the pay-scale of Rs. 125-245. In the remarks column it is specifically mentioned as under :"this includes leave Reservists at 10% i. e. 25 posts : The posts should be filled up in the sanctioned scale by appointment of qualified Asstt. Pharma. If such persons are not available the posts be filled up by appointment of persons who have worked as compounders under registered M. O. for a period of not less than 5 years and who are on examination found to be competent. Such compounders will get pay scale of Rs. 100-170". ( 5 ) IN view of the aforesaid Resolution if the qualified Assistant Pharmacists were not available it was open to the competent authority to appoint the persons who have worked as Compounders under the registered Medical Officer for a period of not less than five years and who are on examination found to be competent. Those compounders were to be appointed in the pay- scale of Rs. 100-170 and not in the pay-scale of Rs. 125 which was payable to the Assistant Pharmacists/compounders. ( 6 ) WITH regard to Petittioner No. 2 it is pointed out that he was appointed by an order dated 6th Septebmer 1965 (Annexure F) as Compounder/lab-Technician under the Employees State Insurance Scheme. His appointment was purely temporary in the pay- scale of Rs. 91-3-130-4-170. It is stated by Petitioner No. 2 himself in his affidavit dated 5th August 1991 that all those compounders who were working in the ESIS as Compounders were absorbed in the Directorate and that those Compounders who were non-metrics were given pay-scale of Rs. 91-170 and those who had passed matriculation examination were given pay-scale of Rs. 100-170. 91-3-130-4-170. It is stated by Petitioner No. 2 himself in his affidavit dated 5th August 1991 that all those compounders who were working in the ESIS as Compounders were absorbed in the Directorate and that those Compounders who were non-metrics were given pay-scale of Rs. 91-170 and those who had passed matriculation examination were given pay-scale of Rs. 100-170. No doubt in the said affidavit it is pointed out that these was no difference between qualified Assistant Pharmacists and those Compounders except the pay-scale as per the Resolution dated 3rd September 1965 On behalf of petitioner No. 2 one Ghanshyam Amarshibhai Chauhan has also filed an affidavit on 23 July 1992 wherein it is stated that the Directorate of Medical Services (ESIS) did not have the cadre of Compounder and the appointments from the inception are made as Assistant Pharmacist. A copy of letter of appointment dated 9 February 1968 of one Shri Kailaspuri Rajpuri Gosai and a copy of letter of appointment dated 8 November 1971 of one Shri Abbamiya Bavamiya Saiyed are produced at P/8. As per the letter of appointment dated 9th February 1968 Kailaspuri Rajpuri Gosai was appointed as Assistant Pharmacist in the pay-scale of Rs. 91-170 and as per the letter of appointment dated 8th November 1971 Abbamiya Bavamiya Saiyed was appointed as Assistant Pharmacist in the pay-scale of Rs. 135 It is apparent that as both were Compounders (unqualified) they were not given the pay-scale of Rs. 175-345. The appointment of Kailaspuri Rajpuri Gosai was made prior to revision of pay-scale and that of Abbamiya Bavamiya Saiyad was made after revision of pay-scale. ( 7 ) IT is an undisputed fact that in the Report of the Gujarat (First) Pay Commission 1968 the cases of the Pharmacists and the Compounders were considered. In the case of Pharmacists the Commission observed as under :"the incumbents of the posts are expected to possess a Diploma in Pharmacy and are appointed by direct selection. All of them carry a uniform pay scale of Rs. 125-270. Considering the duties of the posts the Commission recommends a uniform pay scale of Rs. 175-8-215-EB-10-255-12-315-EB-15-345 for Pharmacists". ( 8 ) IN the case of Compounders drawing pay-scale of Rs. 100-170/rs. 75-130 Commission observed as under :"formerly posts of Compounders were manned mostly by persons with limited education who had received local training. 125-270. Considering the duties of the posts the Commission recommends a uniform pay scale of Rs. 175-8-215-EB-10-255-12-315-EB-15-345 for Pharmacists". ( 8 ) IN the case of Compounders drawing pay-scale of Rs. 100-170/rs. 75-130 Commission observed as under :"formerly posts of Compounders were manned mostly by persons with limited education who had received local training. The minimum qualification prescribed now is S. S. C. with the Compounders examination. The post of Compounders do not normally carry any prospects of promotion and there has been a dearth of qualified personnel. The Commission therefore considers that in view of the training they are required to have and the nature of their duties the scale of pay should be Rs. 135-5-155-EB-7-190- EB-8-230-10-250. The Commission understands a large number of unqualified compounders are still in service. For them a slightly lower scale would be justified and the Commission recommends the scale of Rs. 130 240 for them. Posts of Compounders in other Departments may be put on either of the scales depending on whether existing incumbents possess the necessary qualifications or not. " ( 9 ) ON the basis of the said recommendations of the Gujarat Pay Commission 1968 the Pharmacists were given the pay-scale of Rs. 175-345 and the pay-scale of Assistant Pharmacists/compounders who were drawing the pay-scale of Rs. 91-170 was suggested to be revised to Rs. 135-250. ( 10 ) IN the Report of the Second Pay Commission 1975 the case of the Junior Pharmacist/compounders was considered. The Commission considered the aspect of revising the pay-scale of Junior Pharmacist (Rs. 175-345) and that of Compounders (Rs. 135-250 ). The Commission observed as under :"the qualifications for the Compounders are set out in sections 31 and 32 of the Indian Pharmacy Act. Accordingly appointment can be made from among candidates who are S. S. C. and possessing Diploma in Pharmacy (D. Pharma) which is of two years duration. The Compounders holding the diploma are called Junior Pharmacist. The diploma course has been introduced recently. Prior to that candidates holding S. S. C. with 5 years experience under a medical practitioner were eligible for being appointed as Compounders but they were required. To clear the Compounders Examination held by the Department and such Compounders were called qualified compounders. This mode is still resorted to occasionally till sufficient number of D. Pharm. candidates are available". Prior to that candidates holding S. S. C. with 5 years experience under a medical practitioner were eligible for being appointed as Compounders but they were required. To clear the Compounders Examination held by the Department and such Compounders were called qualified compounders. This mode is still resorted to occasionally till sufficient number of D. Pharm. candidates are available". ( 11 ) THEREAFTER the Commission considered the representation made by the Federations of Compounders and Pharmacists. In the representation made before the Commission it was stated that the duties of Pharmacists and Compounders are identical and the incumbents are interchangeable. After considering their case the Commission recommended the pay- scale of Rs. 330-560 for both the groups namely Junior Pharmacists and Compounders (qualified ). With regard to Compounders (unqualified) a suggestion was made that they should be brought on par with the former two categories as their work is identical. The Commission negatived the said contention and observed as under :"this suggestion cannot obviously be accepted as in cases like this there must be insistence on training and distinction has to be appreciably made between the qualified and the unqualified. However the situation of the unqualified Compounders can be compared to that of clerks in the Medical Department and accordingly the Commission recommends the scale of Rs. 260-400 for unqualified Compounders". ( 12 ) ON the basis of the aforesaid report the Commission recommended by separate Entry 127 pay-scale of Junior Pharmacist at Rs. 330-560 in place of the pay-scale of Rs. 175-345; by Entry 165 pay-scale of Compounder (Qualified) at Rs. 330 in place of the pay-scale of Rs. 135-250 and by Entry 168 pay scale of Compounder (Unqualified) at Rs. 260-400 in place of the pay-scale of Rs. 130-240. It is true that the aforesaid suggestions pertained to the Directorate of Health and Medical Services (Medical Section ). With regard to the Directorate of Medical Services (ESIS) Section III in the said Report deals with some of the prominent categories of posts in the said Directorate and that only few posts were considered by the Commission. It seems that there is no further discussion with regard to other posts because the remaining posts are identical in nature in the Directorate of Health and Medical Services (Medical section ). Hence for Pharmacists Assistant Pharmacists and Compounders there is no discussion. It seems that there is no further discussion with regard to other posts because the remaining posts are identical in nature in the Directorate of Health and Medical Services (Medical section ). Hence for Pharmacists Assistant Pharmacists and Compounders there is no discussion. By Entry 48 the Commission recommended revision of pay scale of Pharmacist/assistant Pharmacist/junior Pharmacist who were in the existing pay-scale of Rs. 175-345 and Rs. 135- 250 at Rs. 330-560. Further Entry 57 is as under : - present Scale Recommend Scale - ayurvedic 135-250 (i) 330-560 (for qualified) compounder (ii) 260-400 (for others) s. G. 490-650 (for 20% of posts) - the recommendations of the Second Pay Commission 1975 were accepted by the Government of Gujarat. On the basis of the said recommendations the Government of Gujarat framed Rules called Gujarat Civil Services (Revision of Pay) Rules 1975 These Rules came into force with effect from 1st January 1973 As per the said Rules for Directorate of Medical Services (ESIS) Entries 48 and 57 are as under : present scale Revised scale - - 48 Pharmacist/ (i) 175-345 330-560 Asst. Pharmacit/ (ii) 175-250 Junior Pharmacist 57 Ayurvedic Compounder 135-250 (i) 330-560 (for qualified) S. G. 490-650 (for 20% of posts) (ii) 260-400 (for others) - thereafter by Resolution dated 12th February 1976 under sub- heading Directorate of Medical Services (ESIS) after Entry 57 the following entries were added. -- present scale Revised scale - - 57 Compounder (qualified) 135-250 330-560 57 Compounder 135-250 260-400 (unqualified) -- subsequently by Resolution dated 28th July 1977 the State Government issued clarification with regard to Directorate of Health and Medical Services (ESIS) and substituted Entries 48 57 and 57a as under : present scale Revised scale Remarks - - 48 Pharmacist/ 175-345 330-560 Diploma holders Asstt. Pharmacist/ S. G. in pharmacy to Jr. Pharmacist. 135-250 425-640 start at Rs. 350. Ayurvedic 135-250 for 30% of posts Compounder Compounder (qualified) 135-250 57 and 57 The existing entries shall be deleted. in view of the substitution Entry 57b pertaining to Compounder (unqualified) remained as it was. Pharmacist/ S. G. in pharmacy to Jr. Pharmacist. 135-250 425-640 start at Rs. 350. Ayurvedic 135-250 for 30% of posts Compounder Compounder (qualified) 135-250 57 and 57 The existing entries shall be deleted. in view of the substitution Entry 57b pertaining to Compounder (unqualified) remained as it was. On the basis of the said entries the State of Gujarat amended the Gujarat Civil Services (Revision of Pay) Rules 1975 by Notification dated 22nd November 1982 which was published in the Official Gazette on 7th March 1992 As per sub-rule (2) of Rule 1 the Gujarat Civil Services (Revision of Pay) (9th Amendment) Rules 1983 are deemed to have come into force on and with effect from 1st January 1973 By this 9th Amendment Rules entry 48 and entry 57 are substituted as under : -- present scale Revised scale Remarks - - - 48 Pharmacist/ 135-250 330-560 Diploma in Asstt. Pharmacist S. G. Pharmacy to start Jr. Pharmacist. 425-640 at Rs. 350. Ayurvedic for 20% of posts Compounder qualified Compounder (qualified) * * * * * * 57 Compounder (unqualified) 135-250 260-400 -- the petitioners have challenged the aforesaid substitution of entry for Compounder (unqualified ). It is the contention of the learned advocate for the petitioners that the distinction made by the respondents between Assistant Pharmacists (qualified) and Assistant Pharmacists (unqualified) is wholly unreasonable because in the Directorate of Medical Services (ESIS) there is only one cadre of Assistant Pharmacist. He therefore vehemently submitted that all the persons holding the said post are discharging the same duties and therefore they should be paid equal salary on the basis of principle of equal pay for equal work. He further submitted that with regard to the recommendations of the Second Pay Commission 1975 the State Government had no authority to change the said recommendations by dividing the cadre of Assistant Pharmacist into two categories namely Assistant Pharmacist/junior Pharmacist (qualified) and Compounders (unqualified ). ( 13 ) AS against this the learned AGP appearing for the respondents has pointed out that from the very inception the persons who were appointed as Compounders having no prescribed qualification were treated separately. They were given the pay-scale of Rs. 91 or Rs. 100-170 while those who were having prescribed qualification of diploma were given the pay-scale of Rs. 125-245. They were given the pay-scale of Rs. 91 or Rs. 100-170 while those who were having prescribed qualification of diploma were given the pay-scale of Rs. 125-245. Thereafter the said pay scale were revised on the basis of the recommendations of the First Pay Commission. At that time also distinction was made between Assistant Pharmacists/compounders (qualified) and Compounders (unqualified ). The qualified Compounders were given the pay-scale of Rs. 175 and Compounders (unqualified) were given the pay-scale of Rs. 135-250. He further submitted that this distinction was maintained even in the recommendations of the Second Pay Commission. For this purpose reliance is placed on paragraph 55 of the recommendations of the Second Pay Commission with regard to Assistant Pharmacists/compounders (qualified) and Compounders (unqualified ). He further pointed out that as such Compounders (unqualified) are not permitted to work as Compounders in view of the provisions of Section 42 of the Pharmacy Act 1948 He relied upon the Resolution dated 15th September 1984 which provides that Compounders (unqualified) should discharge their duties under the supervision of registered pharmacist or medical practitioner. He further relied upon circular dated 18th June 1976 issued by the Chief Accounts Officer ESI Scheme Gujarat State Ahmedabad wherein it is stated that those Compounders who are qualified under the recruitment rules and are holding the qualification of D. Pharm who are registered under the Pharmacy Act 1948 and who have passed the qualifying examination for the post of Compounders should be given the pay-scale of Rs. 330 while the Compounders (unqualified) should be given the pay- scale of Rs. 260-400. ( 14 ) CONSIDERING the facts stated hereinabove it is apparent that since the year 1965 in the Directorate of Medical Services (ESIS) some persons were appointed on the post of Assistnat Pharmacist/compounder even though they were not having the prescribed qualification. This was done on the basis of Government Resolution dated 3rd September 1965 which provided that if the qualified Assistant Pharmacists were not available the persons who have worked as Compounders under a registered Medical Officer for a period of not less than five years and who are on examination found to be competent can he appointed as Compounders in the pay-scale of Rs. 100 ( 15 ) MR. 100 ( 15 ) MR. Zaveri learned advocate for the petitioners has relied upon letter dated 30th May 1974 (P/5) wherein it is inter alia stated that all the posts of Compounders have been converted into those of Assistant Pharmacists vide Government orders contained in G. R. in Panchayats and Health Department No. ESE-1072/8976/e dated 4 December 1973 He further submitted that in the said letter it is specifically stated that the Government agreed in principle to redesignate the Compounders as Pharmacists on the recommendations of the Government of India. ( 16 ) IT is true that in the said letter dated 30th May 1974 (P/5) it is mentioned that all posts of Compounders have been converted into those of Assistant Pharmacists vide Government Resolution dated 4th December 1973 But if we refer to Government Resolution dated 4th December 1973 which is produced on record it is clear that in the said Resolution distinction is made between those persons who are diploma holders and those who are not diploma holders. In the said Resolution it is specifically stated as under :"as qualified Pharmacists holding diploma qualification have now become available for appointment Government is pleased to direct that if and when such diploma holders are appointed in any of the 65 posts mentioned above they should be given the pay scale of Rs. 175 15 and designated as Assistant Pharmacists and such posts will carry the aforesaid scale of Rs. 175-345 so long as these posts are occupied by diploma holders persons other than those who are not diploma holders will continue in the present scale of Rs. 135-250". ( 17 ) THE aforesaid Resolution dated 4th December 1976 also specifically makes distinction between the qualified persons and unqualified persons. Qualified persons that is Compounders having diploma qualification were to be given the pay scale of Rs. 175-345. Other persons who are not holding diploma qualification were to continue in the pay-scale of Rs. 135-250. From the letter and the resolution of the Government it cannot be said that there is no distinction in the cadre of Assistant Pharmacist. On the contrary there is specific distinction between qualified and unqualified persons. ( 18 ) THE learned advocate for the petitioners vehemently submitted that there should not be any discrimination in the pay scale of Assistant Pharmacist as Assistant Pharmacists/ Compounders (qualified) and Compounders (unqualified) are discharging the same duties. On the contrary there is specific distinction between qualified and unqualified persons. ( 18 ) THE learned advocate for the petitioners vehemently submitted that there should not be any discrimination in the pay scale of Assistant Pharmacist as Assistant Pharmacists/ Compounders (qualified) and Compounders (unqualified) are discharging the same duties. For this purpose he relied upon the draft duty list of Compounders/assistant Pharmacists which is at P/3. ( 19 ) IN our view it is difficult for us to accept the aforesaid contention of the learned advocate for the petitioners because of the specific provisions in the Pharmacy Act 1948 Sections 31 and 32 prescribe qualifications for including names of persons in the register of Pharmacist for a State. The said sections read as under :31 Qualifications for entry on first register :- a person who has attained the age of eighteen years shall be entitled on payment of the prescribed fee to have his name entered in the first register if he resides or carries on the business or profession of pharmacy in the State and if he- (a) holds a degree or diploma in pharmacy or pharmaceutical chemistry or a chemist and druggist diploma of an Indian University or a State Government as the case may be or a prescribed qualification granted by an authority outside India or (b) holds a degree of an Indian University other than a degree in pharmacy or pharmaceutical chemistry and has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than three years or (c) has passed an examination recognised as adequate by the State Government for compounders or dispensers or (d) has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than five years prior to the date notified under sub-section (2) of s. 30. 32 Qualifications for subsequent registration :- (1) After the date appointed under sub-section (2) of section 30 and before the Education Regulations have by or under section 11 taken effect in the State a person who has attained the age of eighteen years shall on payment of the prescribed fee be entitled to have his name entered in the register if he resides or carries on the business or profession of pharmacy in the State if he- (a) satisfies the conditions prescribed with the prior approval of the Central Council or where no conditions have been prescribed the conditions entitling a person to have his name entered on the first register as set out in section 31 or (b) is a registered pharmacist in another State or (c) possesses a qualification approved under section 14 : provided that no person shall be entitled under clause (a) or clause (c) to have his name entered on the register unless he has passed a matriculation examination or an examination prescribed as being equivalent to a matriculation examination. (2) After the Education Regulations have by or under section 11 taken effect in the State a person shall on payment of the prescribed fee be entitled to have his name entered on the register if he has attained the age of eighteen years if he resides or carries on the business or profession of pharmacy in the State and if he has passed an approved examination or possesses a qualification approved under section 14 or is a registered pharmacist in another State. ( 20 ) SECTION 42 provides that on or after such date as the State Government may by notification in the Official Gazette appoint in this behalf no person other than a registered pharmacist shall compound or dispense any medicine on the prescription of a medical practitioner. The proviso further makes it clear that where no such date is appointed by the Government of a State the sub-section shall take effect in that State on the expiry of a period of eight years from the commencement of the Pharmacy (Amendment) Act 1976 that is from 1st September 1976 Sub- section (2) further provides that whoever contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or with fine not exceeding one thousand rupees or with both. Therefore it would be an illegal act on the part of the Compounders (unqualified) to compound prepare mix or dispense any medicine. Hence it cannot be said that the Assistant Pharmacists/compounders (qualified) and the Compounders (unqualified) are required to discharge the same duties. . ( 21 ) THE learned advocate for the petitioners has relied upon various judgments of the Supreme Court in support of his contention of equal pay for equal work. He heavily relied on the decision of the Supreme Court in the case of State of U. P. vs. J. P. Chaurasia AIR 1989 Supreme Court 19 to emphasise his contention that determination by expert bodies like Pay Commission should normally be accepted and the Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. For this purpose he relied on paragraph 17 of the judgment. In our view with regard to principle of equal pay for equal work there cannot be any dispute nor can it be disputed that if expert bodies like Pay Commission have determined the nature of duties and responsibilities of posts then the Court should normally accept it. It is not the function of the Court to tinker with such equivalence. With regard to principle of equal pay for equal work in that very judgment the Court has held that this principle has no mechanical application in every case of similar work. Article 14 permits reasonable classification founded on different basis the classification can be made on some qualities or characteristics of persons grouped together and not in others who are left out. The classification of officers into two grades with different scales of pay based either on academic qualification or experience on length of service is sustainable. The Court also relied upon the passages from previous judgments to emphasise that unless such distinction is demonstrated to be irrational or based on no basis or arrived mala fide either in law or in fact the Court should not interfere. ( 22 ) IN the present case as stated earlier different pay scales are prescribed on the basis of the qualification. Therefore it would be difficult for us to hold that the classification made by the State Government between the Compounders (qualified i. e. registered) and the Compounders (unqualified or not registered) is in any way illegal or unreasonable. ( 22 ) IN the present case as stated earlier different pay scales are prescribed on the basis of the qualification. Therefore it would be difficult for us to hold that the classification made by the State Government between the Compounders (qualified i. e. registered) and the Compounders (unqualified or not registered) is in any way illegal or unreasonable. This question is also considered by the Supreme Court in the case of State of Rajasthan vs. Gopi Kishan Sen AIR 1992 Supreme Court 1754 wherein the Court has held that there cannot be any legitimate objections to the grant of a better pay scale dependent on the qualification. The Court observed as under :"the efficiency of a person having a higher qualification is likely to be better than a less qualified person provided of course the qualification is of a nature likely to enable him to perform his duty better and for this reason there cannot be any legitimate objection to the grant of a better scale of pay. In the present case the additional qualification of being trained is of such a nature as to enable the teacher to do his duty better and for that reason the distinction made in the Rules must be upheld as valid". ( 23 ) IN the aforesaid judgment the Court relied upon the decision of the Supreme Court in the case of V. Markendeya vs. State of A. P. AIR 1989 Supreme Court 1308 wherein also the Court has reiterated the principle that classification on the basis of educational qualification is a valid consideration for discriminating in matter pertaining to promotion to the higher post and for prescribing different pay scales. The Court has also observed that the principle of equal pay for equal work is not abstract one it is open to the State to prescribe different pay scales for different cadres having regard to nature duties responsibilities and educational qualifications; higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres. The application of doctrine of equal pay for equal work arises where employees are equal in every respect in educational qualification duties functions and measure of responsibilities and yet they are denied equality in pay. Admittedly in the present case the respondents have given higher pay scale to the Compounders (qualified) and Assistant Pharmacists holding qualification of Diploma in Pharmacy. The application of doctrine of equal pay for equal work arises where employees are equal in every respect in educational qualification duties functions and measure of responsibilities and yet they are denied equality in pay. Admittedly in the present case the respondents have given higher pay scale to the Compounders (qualified) and Assistant Pharmacists holding qualification of Diploma in Pharmacy. Therefore in view of the aforesaid settled position of law there is no substance in the contention of the learned advocate for the petitioners that unqualified Compounders (unregistered Compounders) are illegally discriminated. ( 24 ) AT this stage we would like to refer to the observation made by the Second Pay Commission with regard to Assistant Pharmacists/compounders (qualified) and the Compounders (unqualified ). The Commission has specifically negatived the suggestion that Compounders (unqualified) should also be brought on par with Compounders (qualified) and persons holding Diploma in pharmacy. The Commission has specifically observed that in such cases insisting on training and distinction has to be appreciably made between qualified and unqualified person and that Compounders (unqualified) can be compared to Junior Clerks in Medical Department. However the learned advocate for the petitioners vehemently submitted that this recommendation is only with regard to the Directorate of Public Health and Medical Services (Medical Section) and it does not pertain to Directorate of Medical Services (ESIS ). In our view this submission is also not well-founded because with regard to Directorate of Medical Services (ESIS) the Commission has dealt with only few posts. It appears that the Commission has not dealt with other posts because other posts are identical with the posts in the Directorate of Public Health and Medical Services (Medical Section ). The Commission has rejected the representation made by the Compounders (unqualified) to treat them on par with the Compounders (qualified) by observing that the Compounders (unqualified) can be compared to Junior Clerks in the Medical Department and has recommended the pay scale of Rs. 260-400 for them. Further in concluding recommendation it is observed as under :"the term General condition of Service is too vide and though the Commission has attempted to deal with a number of issues in their proper prespective on the basis of available material within the time at its disposal there may still be some issues left untackled. 260-400 for them. Further in concluding recommendation it is observed as under :"the term General condition of Service is too vide and though the Commission has attempted to deal with a number of issues in their proper prespective on the basis of available material within the time at its disposal there may still be some issues left untackled. It is hoped Government will dispose of such issues as and when they arise keeping in view generally the recommendations of the T. C. P. C. and or in consultation with the Staff representatives". ( 25 ) FROM this recommendation it is apparent that wherever the Commission has not specifically dealt with a particular post it was open to the State Government to apply the rational principles for determining the pay scales with regard to that post. Further the Commission has dealt with exactly similar posts in different sections of medical service. As such prior to 1965 the Directorate of Medical Services (ESIS) was part and parcel of the Directorate of Public Health and Medical Services (Medical section ). ( 26 ) MR. Pujari learned Assistant Government pleader further relied upon the observations made by the Third Pay Commission with regard to post of Compounder (unqualified) which are as under :"appointment to the post of Compounder is made by direct selection who have passed the S. S. C. or any other equivalent examination and passed the prescribed Compounders examination or the examination of practising Pharmacist Training Course conducted by the Indian Pharmaceutical Association (Bombay State Branch) or Diploma or Degree in Pharmacy of recognised University and have registered their names with the State Pharmacy Council. ( 27 ) THE Akhil Gujarat Compounders Federation demanded that pay scales of qualified and unqualified Compounders should be equal from 1st January 1973 and then revised scale of Rs. 900 should be recommended. They further stated during the oral evidence that unqualified Compounders who have put in ten years or more of service should be treated as deemed qualified for all purposes including promotion. In this sense they demand the uniform scale. For unqualified Compounders with less than 10 years of service they may not have any objection for a separate scale. ( 28 ) SECTION 42 of the Pharmacy Act 1948 empowers the State Government to appoint a date on and from which unregistered persons shall be prohibited from dispensing medicines in the State. For unqualified Compounders with less than 10 years of service they may not have any objection for a separate scale. ( 28 ) SECTION 42 of the Pharmacy Act 1948 empowers the State Government to appoint a date on and from which unregistered persons shall be prohibited from dispensing medicines in the State. It further provides that if the State Government fails to appoint a date the said provision shall take effect in the State on the expiry of the period of eight years from the commencement of the Pharmacy (Amendment) Act 1976 Accordingly the provision automatically applies in the State on the expiry of eight years that is with effect from 1st September 1984 Accordingly Compounders who are not eligible to be registered as Pharmacists are debarred from compounding preparing mixing or dispensing any medicine on the prescription of a Medical Practitioner. Such Compounders known as unqualified Compounders who have failed to secure registration cannot function as Pharmacists in view of section 42 (1) of the Act. Contravention of the said provision is an offence under section 42 (2) of the Act. We would therefore suggest that unqualified Compounders who are presently designated as Junior Pharmacists should be given a different designation other than a Pharmacist. ( 29 ) THE Commission therefore recommends a scale of Rs. 890-1470 for the post qualified Junior Pharmacist and a scale of Rs. 730-1110 for the post of unqualified Junior Pharmacist. The Commission further recommends that diploma holders should start at Rs. 930 in the scale of Rs. 890 In that Report also the Commission has not separately dealt with Junior Pharmacist/compounder to the Directorate of Medical Services (ESIS ). In our view the reason is obvious because the Commission has dealt with the other posts which are not equivalent in the Directorate of Health and Medical Services and Medical Education (Medical ). The recommendation for pay scale is as under : sr. In our view the reason is obvious because the Commission has dealt with the other posts which are not equivalent in the Directorate of Health and Medical Services and Medical Education (Medical ). The recommendation for pay scale is as under : sr. Designation No. of Existing Recommended Remarks No. posts scale of pay scale of pay (1) (2) (3) (4) (5) (6) 73 Junior 492 (i) 330-560 (S. G. 416-700 (i) 890-1470 (i) for Pharmacist for 20% of posts) qualified (ii) 260-400 (S. G. 350-600 (ii) 730-1110 (ii) for for 20% of posts) unqualified 74 Compounder 61 (i) 330-560 (S. G. 490-650 (i) 890-1470 (i) for (Ayurved) for 20% of posts) qualified (ii) 260-400 (S. G. 350-600 (ii) 730-1110 (ii) for for 20% of posts) unqualified however Mr. Zaveri learned advocate for the petitioners vehemently submitted that the Report of Ahmadi Pay Commission (Third Pay Commission) is not accepted by the State Government and therefore the observation made with regard to Compounders (unqualified) should not be taken into consideration. It is true that the Report of the Third Pay Commission is not implemented by the Government because the revision of pay scales of Central Pay Commission was found to be more beneficial to the State Employees. The State Government accepted the revision of pay scale as recommended by the Central Pay Commission on the representation of the State Employees. But this would not mean that the State Government has decided not to accept the suggestions made by the Third Pay Commission with regard to equivalence of posts or the nature of duties performed by the Compunders (unqualified) in the Directorate of Health and Medical Services [ (Medical Section) and the Directorate of Medical Services (ESIS)]. From the aforesaid discussion it is apparent that all throughout the respondents have maintained the distinction between Compounders (qualified) and Compounders (unqualified ). Therefore it cannot be said that fixation of different pay scales for Compounder (qualified) and Compounder (unqualified or not registered) is in any way illegal or arbitrary. From the very inspection the departments were treating them separately. As such their appointment was temporary on and ad hoc basis till Junior Pharmacists/compounders (qualified) were available. Learned advocate Mr. Zaveri submitted that the only distinction between Compounders (registered) and Compounders (unqualified/unregistered) is that the names of the Compounders (unqualified) are not registered in the register as Pharmacists for the State. As such their appointment was temporary on and ad hoc basis till Junior Pharmacists/compounders (qualified) were available. Learned advocate Mr. Zaveri submitted that the only distinction between Compounders (registered) and Compounders (unqualified/unregistered) is that the names of the Compounders (unqualified) are not registered in the register as Pharmacists for the State. He submitted that clause (d) of section 31 specifically provides that on payment of prescribed fee a person who carries on the business of pharmacy in the State and if he has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of Medical Practitioners for a total period of not less than five years is entitled to be registered. He submitted that the members of the first petitioner-union who are Compounders (unregistered) are working since 1965 and they are engaged in the compounding of drugs in a hospital or dispensary or other place on prescriptions of the Medical Practitioners for more than the prescribed period. He has further submitted that there is no other distinction between qualified Compounders and unqualified Compounders. In our view this submission cannot be accepted because the Legislature has specifically prescribed a date which has to be notified under sub-section (2) of section 30 and only those persons who are entitled to get benefit on the said date were to be registered. Mr. Zaveri further submitted that similar provision is made under section 32b of the Act for registering persons on the ground that they were displaced persons and that section 32b is inserted from 1st September 1976 In our view it is for the Legislature to prescribe qualification for registration. Admittedly the petitioners are not registered Compounders. In view of section 42 at present they cannot discharge the function of a registered Pharmacist. Mr. Zaveri submitted that section 42 came into operation in the State of Gujarat only from 1st September 1984 and therefore till 1st September 1984 there should not be any distinction in the pay scale of Compounders (registered) and Compounders (unregistered ). In our view this submission is based solely on section 42 of the Pharmacy Act by ignoring the fact that from the very inception persons who are registered were treated separately. In 1964 itself the registered Compounders were given pay scale of Rs. 100-170 and other qualified persons were given pay scale Rs. In our view this submission is based solely on section 42 of the Pharmacy Act by ignoring the fact that from the very inception persons who are registered were treated separately. In 1964 itself the registered Compounders were given pay scale of Rs. 100-170 and other qualified persons were given pay scale Rs. 91 - 170. The learned advocate appearing for the petitioners further submitted that this Court may recommend that to the members of the first petitioner-union who are unqualified Compounders some special grade and long service benefit should also be given by increasing their salary appropriately. In our view in this petition it is not open to us to deal with this contention. It is open to petitioner No. 1 union or its members to make appropriate representation before the State Government pointing out various factors including the factor that they are working since 1965 and they be given higher pay scale and other benefits which are given to the employees who are not having any chance of promotion. In this view of the matter there is no substance in the contention raised by the learned advocate appearing for the petitioners that the petitioners who are members of petitioner No. 1 Union and who are unqualified Compounders are arbitrarily and illegally discriminated and that they should be given the same pay scale as is given to the Compounders (qualified ). Lastly the learned advocate for the petitioners submitted that in no set of circumstances the respondents should be permitted to recover the salary which is already paid to the members of the petitioner-union who are unqualified Compounders on the basis of revision of pay scale under the Gujarat Civil Services (Revision of pay) Rules 1975 In our view this submission cannot be accepted because it is the say of the learned Asst. Government Pleader for the respondents that from most of the employees who are Compounders (unqualified) additional salary which was paid under mistaken belief is already recovered. He pointed out that even according to the revision of pay scale by Entry 48 for the persons holding the post of Pharmacist/assistant Pharmacist/junior Pharmacist revised pay scale was fixed at the rate of Rs. 330 By Entry 57 for Ayurvedic Compounder the revised pay scale was fixed at (i) Rs. 330-560 (for qualified) and (ii) Rs. 260-400 (for others) meaning thereby that for unqualified persons it was Rs. 260-400. 330 By Entry 57 for Ayurvedic Compounder the revised pay scale was fixed at (i) Rs. 330-560 (for qualified) and (ii) Rs. 260-400 (for others) meaning thereby that for unqualified persons it was Rs. 260-400. As the word Ayurvedic had created confusion the State Government was approached for clarification and the State Government had clarified that for the Compounders (unqualified) their pay scale would be Rs. 260 He therefore submitted that if under mistaken belief some higher salary is given there is no question of restraining the respondents from recovering it. Considering all the facts of the case it would not be proper to accept the contention of the learned advocate for the petitioners and hence the respondents cannot be restrained from recovering the difference of salary which is paid in excess to the Compounders (unqualified ). In the result this petition is rejected. Rule discharged with no order as to costs. The interim relief stands vacated. Petition rejected. . ( 21 ) THE learned advocate for the petitioners has relied upon various judgments of the Supreme Court in support of his contention of equal pay for equal work. He heavily relied on the decision of the Supreme Court in the case of State of U. P. vs. J. P. Chaurasia AIR 1989 Supreme Court 19 to emphasise his contention that determination by expert bodies like Pay Commission should normally be accepted and the Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. For this purpose he relied on paragraph 17 of the judgment. In our view with regard to principle of equal pay for equal work there cannot be any dispute nor can it be disputed that if expert bodies like Pay Commission have determined the nature of duties and responsibilities of posts then the Court should normally accept it. It is not the function of the Court to tinker with such equivalence. With regard to principle of equal pay for equal work in that very judgment the Court has held that this principle has no mechanical application in every case of similar work. Article 14 permits reasonable classification founded on different basis the classification can be made on some qualities or characteristics of persons grouped together and not in others who are left out. Article 14 permits reasonable classification founded on different basis the classification can be made on some qualities or characteristics of persons grouped together and not in others who are left out. The classification of officers into two grades with different scales of pay based either on academic qualification or experience on length of service is sustainable. The Court also relied upon the passages from previous judgments to emphasise that unless such distinction is demonstrated to be irrational or based on no basis or arrived mala fide either in law or in fact the Court should not interfere. ( 22 ) IN the present case as stated earlier different pay scales are prescribed on the basis of the qualification. Therefore it would be difficult for us to hold that the classification made by the State Government between the Compounders (qualified i. e. registered) and the Compounders (unqualified or not registered) is in any way illegal or unreasonable. This question is also considered by the Supreme Court in the case of State of Rajasthan vs. Gopi Kishan Sen AIR 1992 Supreme Court 1754 wherein the Court has held that there cannot be any legitimate objections to the grant of a better pay scale dependent on the qualification. The Court observed as under :"the efficiency of a person having a higher qualification is likely to be better than a less qualified person provided of course the qualification is of a nature likely to enable him to perform his duty better and for this reason there cannot be any legitimate objection to the grant of a better scale of pay. In the present case the additional qualification of being trained is of such a nature as to enable the teacher to do his duty better and for that reason the distinction made in the Rules must be upheld as valid". ( 23 ) IN the aforesaid judgment the Court relied upon the decision of the Supreme Court in the case of V. Markendeya vs. State of A. P. AIR 1989 Supreme Court 1308 wherein also the Court has reiterated the principle that classification on the basis of educational qualification is a valid consideration for discriminating in matter pertaining to promotion to the higher post and for prescribing different pay scales. The Court has also observed that the principle of equal pay for equal work is not abstract one it is open to the State to prescribe different pay scales for different cadres having regard to nature duties responsibilities and educational qualifications; higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres. The application of doctrine of equal pay for equal work arises where employees are equal in every respect in educational qualification duties functions and measure of responsibilities and yet they are denied equality in pay. Admittedly in the present case the respondents have given higher pay scale to the Compounders (qualified) and Assistant Pharmacists holding qualification of Diploma in Pharmacy. Therefore in view of the aforesaid settled position of law there is no substance in the contention of the learned advocate for the petitioners that unqualified Compounders (unregistered Compounders) are illegally discriminated. ( 24 ) AT this stage we would like to refer to the observation made by the Second Pay Commission with regard to Assistant Pharmacists/compounders (qualified) and the Compounders (unqualified ). The Commission has specifically negatived the suggestion that Compounders (unqualified) should also be brought on par with Compounders (qualified) and persons holding Diploma in pharmacy. The Commission has specifically observed that in such cases insisting on training and distinction has to be appreciably made between qualified and unqualified person and that Compounders (unqualified) can be compared to Junior Clerks in Medical Department. However the learned advocate for the petitioners vehemently submitted that this recommendation is only with regard to the Directorate of Public Health and Medical Services (Medical Section) and it does not pertain to Directorate of Medical Services (ESIS ). In our view this submission is also not well-founded because with regard to Directorate of Medical Services (ESIS) the Commission has dealt with only few posts. It appears that the Commission has not dealt with other posts because other posts are identical with the posts in the Directorate of Public Health and Medical Services (Medical Section ). The Commission has rejected the representation made by the Compounders (unqualified) to treat them on par with the Compounders (qualified) by observing that the Compounders (unqualified) can be compared to Junior Clerks in the Medical Department and has recommended the pay scale of Rs. 260-400 for them. The Commission has rejected the representation made by the Compounders (unqualified) to treat them on par with the Compounders (qualified) by observing that the Compounders (unqualified) can be compared to Junior Clerks in the Medical Department and has recommended the pay scale of Rs. 260-400 for them. Further in concluding recommendation it is observed as under :"the term General condition of Service is too vide and though the Commission has attempted to deal with a number of issues in their proper prespective on the basis of available material within the time at its disposal there may still be some issues left untackled. It is hoped Government will dispose of such issues as and when they arise keeping in view generally the recommendations of the T. C. P. C. and or in consultation with the Staff representatives". ( 25 ) FROM this recommendation it is apparent that wherever the Commission has not specifically dealt with a particular post it was open to the State Government to apply the rational principles for determining the pay scales with regard to that post. Further the Commission has dealt with exactly similar posts in different sections of medical service. As such prior to 1965 the Directorate of Medical Services (ESIS) was part and parcel of the Directorate of Public Health and Medical Services (Medical section ). ( 26 ) MR. Pujari learned Assistant Government pleader further relied upon the observations made by the Third Pay Commission with regard to post of Compounder (unqualified) which are as under :"appointment to the post of Compounder is made by direct selection who have passed the S. S. C. or any other equivalent examination and passed the prescribed Compounders examination or the examination of practising Pharmacist Training Course conducted by the Indian Pharmaceutical Association (Bombay State Branch) or Diploma or Degree in Pharmacy of recognised University and have registered their names with the State Pharmacy Council. ( 27 ) THE Akhil Gujarat Compounders Federation demanded that pay scales of qualified and unqualified Compounders should be equal from 1st January 1973 and then revised scale of Rs. 900 should be recommended. They further stated during the oral evidence that unqualified Compounders who have put in ten years or more of service should be treated as deemed qualified for all purposes including promotion. In this sense they demand the uniform scale. 900 should be recommended. They further stated during the oral evidence that unqualified Compounders who have put in ten years or more of service should be treated as deemed qualified for all purposes including promotion. In this sense they demand the uniform scale. For unqualified Compounders with less than 10 years of service they may not have any objection for a separate scale. ( 28 ) SECTION 42 of the Pharmacy Act 1948 empowers the State Government to appoint a date on and from which unregistered persons shall be prohibited from dispensing medicines in the State. It further provides that if the State Government fails to appoint a date the said provision shall take effect in the State on the expiry of the period of eight years from the commencement of the Pharmacy (Amendment) Act 1976 Accordingly the provision automatically applies in the State on the expiry of eight years that is with effect from 1st September 1984 Accordingly Compounders who are not eligible to be registered as Pharmacists are debarred from compounding preparing mixing or dispensing any medicine on the prescription of a Medical Practitioner. Such Compounders known as unqualified Compounders who have failed to secure registration cannot function as Pharmacists in view of section 42 (1) of the Act. Contravention of the said provision is an offence under section 42 (2) of the Act. We would therefore suggest that unqualified Compounders who are presently designated as Junior Pharmacists should be given a different designation other than a Pharmacist. ( 29 ) THE Commission therefore recommends a scale of Rs. 890-1470 for the post qualified Junior Pharmacist and a scale of Rs. 730-1110 for the post of unqualified Junior Pharmacist. The Commission further recommends that diploma holders should start at Rs. 930 in the scale of Rs. 890 In that Report also the Commission has not separately dealt with Junior Pharmacist/compounder to the Directorate of Medical Services (ESIS ). In our view the reason is obvious because the Commission has dealt with the other posts which are not equivalent in the Directorate of Health and Medical Services and Medical Education (Medical ). The recommendation for pay scale is as under : sr. In our view the reason is obvious because the Commission has dealt with the other posts which are not equivalent in the Directorate of Health and Medical Services and Medical Education (Medical ). The recommendation for pay scale is as under : sr. Designation No. of Existing Recommended Remarks No. posts scale of pay scale of pay (1) (2) (3) (4) (5) (6) 73 Junior 492 (i) 330-560 (S. G. 416-700 (i) 890-1470 (i) for Pharmacist for 20% of posts) qualified (ii) 260-400 (S. G. 350-600 (ii) 730-1110 (ii) for for 20% of posts) unqualified 74 Compounder 61 (i) 330-560 (S. G. 490-650 (i) 890-1470 (i) for (Ayurved) for 20% of posts) qualified (ii) 260-400 (S. G. 350-600 (ii) 730-1110 (ii) for for 20% of posts) unqualified however Mr. Zaveri learned advocate for the petitioners vehemently submitted that the Report of Ahmadi Pay Commission (Third Pay Commission) is not accepted by the State Government and therefore the observation made with regard to Compounders (unqualified) should not be taken into consideration. It is true that the Report of the Third Pay Commission is not implemented by the Government because the revision of pay scales of Central Pay Commission was found to be more beneficial to the State Employees. The State Government accepted the revision of pay scale as recommended by the Central Pay Commission on the representation of the State Employees. But this would not mean that the State Government has decided not to accept the suggestions made by the Third Pay Commission with regard to equivalence of posts or the nature of duties performed by the Compunders (unqualified) in the Directorate of Health and Medical Services [ (Medical Section) and the Directorate of Medical Services (ESIS)]. From the aforesaid discussion it is apparent that all throughout the respondents have maintained the distinction between Compounders (qualified) and Compounders (unqualified ). Therefore it cannot be said that fixation of different pay scales for Compounder (qualified) and Compounder (unqualified or not registered) is in any way illegal or arbitrary. From the very inspection the departments were treating them separately. As such their appointment was temporary on and ad hoc basis till Junior Pharmacists/compounders (qualified) were available. Learned advocate Mr. Zaveri submitted that the only distinction between Compounders (registered) and Compounders (unqualified/unregistered) is that the names of the Compounders (unqualified) are not registered in the register as Pharmacists for the State. As such their appointment was temporary on and ad hoc basis till Junior Pharmacists/compounders (qualified) were available. Learned advocate Mr. Zaveri submitted that the only distinction between Compounders (registered) and Compounders (unqualified/unregistered) is that the names of the Compounders (unqualified) are not registered in the register as Pharmacists for the State. He submitted that clause (d) of section 31 specifically provides that on payment of prescribed fee a person who carries on the business of pharmacy in the State and if he has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of Medical Practitioners for a total period of not less than five years is entitled to be registered. He submitted that the members of the first petitioner-union who are Compounders (unregistered) are working since 1965 and they are engaged in the compounding of drugs in a hospital or dispensary or other place on prescriptions of the Medical Practitioners for more than the prescribed period. He has further submitted that there is no other distinction between qualified Compounders and unqualified Compounders. In our view this submission cannot be accepted because the Legislature has specifically prescribed a date which has to be notified under sub-section (2) of section 30 and only those persons who are entitled to get benefit on the said date were to be registered. Mr. Zaveri further submitted that similar provision is made under section 32b of the Act for registering persons on the ground that they were displaced persons and that section 32b is inserted from 1st September 1976 In our view it is for the Legislature to prescribe qualification for registration. Admittedly the petitioners are not registered Compounders. In view of section 42 at present they cannot discharge the function of a registered Pharmacist. Mr. Zaveri submitted that section 42 came into operation in the State of Gujarat only from 1st September 1984 and therefore till 1st September 1984 there should not be any distinction in the pay scale of Compounders (registered) and Compounders (unregistered ). In our view this submission is based solely on section 42 of the Pharmacy Act by ignoring the fact that from the very inception persons who are registered were treated separately. In 1964 itself the registered Compounders were given pay scale of Rs. 100-170 and other qualified persons were given pay scale Rs. In our view this submission is based solely on section 42 of the Pharmacy Act by ignoring the fact that from the very inception persons who are registered were treated separately. In 1964 itself the registered Compounders were given pay scale of Rs. 100-170 and other qualified persons were given pay scale Rs. 91 - 170. The learned advocate appearing for the petitioners further submitted that this Court may recommend that to the members of the first petitioner-union who are unqualified Compounders some special grade and long service benefit should also be given by increasing their salary appropriately. In our view in this petition it is not open to us to deal with this contention. It is open to petitioner No. 1 union or its members to make appropriate representation before the State Government pointing out various factors including the factor that they are working since 1965 and they be given higher pay scale and other benefits which are given to the employees who are not having any chance of promotion. In this view of the matter there is no substance in the contention raised by the learned advocate appearing for the petitioners that the petitioners who are members of petitioner No. 1 Union and who are unqualified Compounders are arbitrarily and illegally discriminated and that they should be given the same pay scale as is given to the Compounders (qualified ). Lastly the learned advocate for the petitioners submitted that in no set of circumstances the respondents should be permitted to recover the salary which is already paid to the members of the petitioner-union who are unqualified Compounders on the basis of revision of pay scale under the Gujarat Civil Services (Revision of pay) Rules 1975 In our view this submission cannot be accepted because it is the say of the learned Asst. Government Pleader for the respondents that from most of the employees who are Compounders (unqualified) additional salary which was paid under mistaken belief is already recovered. He pointed out that even according to the revision of pay scale by Entry 48 for the persons holding the post of Pharmacist/assistant Pharmacist/junior Pharmacist revised pay scale was fixed at the rate of Rs. 330 By Entry 57 for Ayurvedic Compounder the revised pay scale was fixed at (i) Rs. 330-560 (for qualified) and (ii) Rs. 260-400 (for others) meaning thereby that for unqualified persons it was Rs. 260-400. 330 By Entry 57 for Ayurvedic Compounder the revised pay scale was fixed at (i) Rs. 330-560 (for qualified) and (ii) Rs. 260-400 (for others) meaning thereby that for unqualified persons it was Rs. 260-400. As the word Ayurvedic had created confusion the State Government was approached for clarification and the State Government had clarified that for the Compounders (unqualified) their pay scale would be Rs. 260 He therefore submitted that if under mistaken belief some higher salary is given there is no question of restraining the respondents from recovering it. Considering all the facts of the case it would not be proper to accept the contention of the learned advocate for the petitioners and hence the respondents cannot be restrained from recovering the difference of salary which is paid in excess to the Compounders (unqualified ). In the result this petition is rejected. Rule discharged with no order as to costs. The interim relief stands vacated. Petition rejected. .