M. S. PANDYA v. STATE — 1996 DIGILAW 637 (GUJ)

M. S. PARIKH, J. ( 1 ) BY consent these three petitions have been heard together and are being decided accordingly. ( 2 ) THE prayer almost common in these three petitions is for the revision of pay-scale of Librarian. The initial prayer is to grant pay-scale of Rs. 550-900 with effect from 1-1-1973 and then the pay-scale of Rs. 700-1600 with effect from 1-4-1980 and finally pay-scale of Rs. 2200-4000 with effect from 1-1-1986. ( 3 ) THE facts in brief concerning the petitioners in these petitions may be stated :- the petitioner Mr. M. S. Pandya in S. C. A. No. 2473 of 1983 has been working as a Librarian in the office of Director, Drug Control Administration, State of gujarat, Ahmedabad. He was appointed as such in the year 1964. His pay was fixed at Rs. 530. 00 with effect from 1-1-1973 in the scale of Rs. 425-700. According to his say a statutory body known as Board of Experts was created under the provisions of the Bombay Prohibition Act. The State Government maintains a separate library meant for the use of Board of Experts, of which the Director, drug Control Administration, respondent No. 3 herein, is a Member Secretary. The Board of Experts, a separate statutory body is under the control of the office of the 2nd respondent. Two libraries are maintained in the office of the 3rd respondent. The petitioner being the Librarian appointed for the library of 3rd respondent, was also required to look after the library of the Board of Experts. This petitioner has set out detailed particulars about the number of books, the extent of work and the nature of work the petitioner is required to attend to. Initially the petitioner claimed special pay and/or additional remuneration on account of the petitioner having been required to attend to two libraries as aforesaid. However, by way of amendment the petitioner has prayed for the revision of pay-scale as aforesaid on the ground that the Librarians working under the Government of gujarat in different colleges have been given the pay-scale of Rs. 425-700, revised to Rs. 550-900 with effect from 1-1-1973 as per resolution dated 6-10-1979 of the education Department of the Government. However, by way of amendment the petitioner has prayed for the revision of pay-scale as aforesaid on the ground that the Librarians working under the Government of gujarat in different colleges have been given the pay-scale of Rs. 425-700, revised to Rs. 550-900 with effect from 1-1-1973 as per resolution dated 6-10-1979 of the education Department of the Government. The reason for claiming the revised pay-scale is that the petitioner is similarly situated and the Government ought to have accepted the petitioners demand for revision of pay-scale, particularly bearing in mind the fact that the petitioner has been discharging his duties at the libraries run by two different Departments. The petitioner has also relied upon the revision of pay-scale of similarly situated Librarians having been revised either under the government resolution quoted above or by virtue of the decisions of this Court. ( 4 ) THE stand of the Government is that there is only one post of Librarian in the Directorate and in the same office there are also books and publications for the board of Experts as a part and parcel of the same library where the petitioner has been working as the Librarian. Accordingly, the stand of the Government is that it would be for the Pay Commission to revise the pay-scale. With regard to the payscale given under the resolution and by virtue of the decisions of this Court, it is contended that in the particular cases the pay-scale of Librarians working in the educational institutions came to be revised on account of the fact that the Central government provided assistance to the State Government to the extent of 80% of additional expenditure involved in giving effect to the revision of pay to teachers, librarians and physical education personnel in Universities and Government and non- government colleges. Thus, according to the say of the respondents, Librarians working in the Universities, colleges and educational institutions stand on a different footing from the Librarians working in the Department libraries. Nature of their duties, responsibilities and educational qualifications are different. Hence, they cannot be treated as equal for the purpose of pay-scale. Reference has been made to government resolution dated 14-9-1988. Nature of their duties, responsibilities and educational qualifications are different. Hence, they cannot be treated as equal for the purpose of pay-scale. Reference has been made to government resolution dated 14-9-1988. Making a reference to the award of gujarat State Second Pay Commission and item No. 30 at page 192 of Gujarat Civil service (Revision of Pay) Rules, 1975, it has been asserted that the Librarian having scale of Rs. 200-490 with starting pay of Rs. 230. 00 for diploma holders in Library science was placed in revised pay-scale of Rs. 425-700 with a remark that the educational qualifications would be graduates with degree or diploma in Library science. Referring, then, to the Gujarat State Third Pay Commission report following particulars have been set out at page Nos. 30, 31 and 32 at para 14 under the heading "library Staff" : category Existing scale Recommended scale librarian : (a) Graduates with degree/ diploma in Library Science 425-700 1050-1875 (b) Graduates with certificate in Library Science 380-640 1050-1620 (c) S. C. C. with diploma/certificate in Library Science 330-560 890-1470 ( 5 ) THE Government, however, revised the pay-scale of Librarian working in various Departments of the Government of Gujarat from Rs. 425-700 to Rs. 1400- 2300, which is more than the pay-scale prescribed by the Third Pay Commission. In view of the fact that the Government employees wanted the Central Pay commission, the State Government revised the pay-scale accordingly. Under such circumstances, the Government resolution pressed into service by the petitioner and the decisions rendered by this Court relied upon by the petitioner would not apply to the petitioners case. It has been further alleged that even the principle of equal pay for equal work would not apply. ( 6 ) THE petitioner in his affidavit-in-rejoinder has clarified the facts by stating that the petitioner and the Librarian working in the Pharmacy College are in the same seniority list and, therefore, he is entitled to get the same pay-scale as is now granted pursuant to the judgment of this Court to a Librarian of the Pharmacy college. It is further clarified as per the classification made by the Government that the Departmental Librarians are treated as special Librarians and are placed on higher footing since they are meant for experts and departmental heads discharging technical and departmental functions. It is further clarified as per the classification made by the Government that the Departmental Librarians are treated as special Librarians and are placed on higher footing since they are meant for experts and departmental heads discharging technical and departmental functions. The other two categories are Public Librarians and Academic Librarians, who are not placed in any higher level. Referring to the case of Shri R. S. Khetra, who is working as Librarian in the office of Director of health and Medical Services and not in any college or University, it has been asserted that the said Mr. Khetra filed S. C. A. No. 1946 of 1982 and that S. C. A. was allowed on 30-8-1983 and all the petitioners including Mr. Khetra in that petition were declared as entitled to revised pay-scale of Rs. 550-900 with effect from 1-1-1973. Thereafter, by order dated 27-1-1984 the Director of Health refixed the pay of Mr. Khetra from the date of his appointment, namely 10-9-1979 and he was paid all the arrears. Mr. Khetra has been given further revision of pay in the line of revision of pay as stated above. On that basis, the petitioner has asserted that his scale should be revised to Rs. 550-900 (new scale Rs. 1640-2900) from 1-1-973 and that the same should be further revised to Rs. 700-1500 (new scale Rs. 2200-4000) from 1-4-1980. ( 7 ) THE petitioners in S. C. A. No. 2093 of 1986 are 19 in numbers. At the time when this petition was filed petitioner Nos. 6, 7, 8, 9, 10, 11 and 17 were serving as Librarians in Government District Libraries and the petitioner Nos. 1, 2, 3, 12, 14, 15, 16, 18 and 19 were serving as Professional Assistants in Libraries under the control of respondent Nos. 2 and 3, namely Curator of Libraries and Director of higher Education, State of Gujarat. The petitioner Nos. 4 and 5 were for some time working in District Libraries and when the petition was filed, they were working in College Libraries. Their case is that there are two categories of Librarians under the respondents, namely (1) the Librarians serving in Government District libraries and (2) the Librarians serving in Government Colleges owned, controlled and managed by the respondent No. 1 Government. The pay-scale of the Librarians of both the aforesaid categories and the Professional Assistants was fixed at Rs. Their case is that there are two categories of Librarians under the respondents, namely (1) the Librarians serving in Government District libraries and (2) the Librarians serving in Government Colleges owned, controlled and managed by the respondent No. 1 Government. The pay-scale of the Librarians of both the aforesaid categories and the Professional Assistants was fixed at Rs. 425- 700 by Desai Pay Commission. Subsequently, by resolution dated 16-10-1979 it was revised to Rs. 550-900 in so far as the Librarians working in the Government and non-Government colleges were concerned. This revision was with effect from 1-1-1973. The petitioners were, however, denied the benefit of revision as per the state Government resolution on the ground that the said resolution was applicable only in the case of Librarians working in the Government and non-Government colleges affiliated to the University. Thus, the benefit of the Government resolution was conferred upon the petitioners with effect from the date on which the respective petitioners were transferred as Librarians in the Government colleges and they were again denied the benefit during their tenure as Librarians in the Government District libraries. According to their say, the cadre of Librarians including that of Professional assistants is only one cadre. The rules of recruitment for Librarians working in district Libraries or in colleges or in other libraries under the control of Government are the same. By resolution dated 3-9-1980 the 1st respondent provided that the educational qualification for recruitment to the post of Librarian in Government colleges would be the same as in the case of Librarians working in the Government district Libraries. As stated above, the Librarians working in the Government District libraries are transferable to the College Libraries and the Librarians working in the College Libraries are transferable in the District Libraries. Thus, having regard to the service conditions, nature of work and the duties and functions of all the librarians, they as a whole, constitute one class and the discriminatory treatment given by the Government to the Librarians working in the District Libraries should be rectified. Reference has been made to the decision in the case of Natvarlal Babalal patel in S. C. A. No. 878 of 1984, where the revision of pay-scale as has been claimed in this petition, has been granted. The said decision shall be referred to hereafter. Reference has been made to the decision in the case of Natvarlal Babalal patel in S. C. A. No. 878 of 1984, where the revision of pay-scale as has been claimed in this petition, has been granted. The said decision shall be referred to hereafter. The petitioners have then made a reference to another case of N. C. Patel and Ors. v. State, reported in [1983 (2)] XXIV (2) GLR 1526, where also the revision of payscale has been granted to the petitioners of that petition. The petitioners have also quoted the instance of one Mr. D. J. Trivedi, Assistant Curator of Libraries, Class- ii, who was granted pay-scale of Rs. 550-900 from 1-1-1973 to 27-7-1980 as per the office order dated 22-12-1982, inspite of the fact that said Mr. Trivedi most of the time worked as Librarian in the Government District Libraries. Reference has then been made to similar orders passed in the case of Mr. R. G. Raval and K. K. Dave in respect of their period of work as Librarians in Government District libraries. That is how the petitioners in this petition have made grievance about the discriminatory treatment they have received. ( 8 ) THE Government has filed affidavit-in-reply dated 6-10-1995 and now the same is on the record. Reiterating what has been contended in the other petition following further facts have been set out in reply to this petition. ( 9 ) UNDER the report of Desai Pay Commission pay-scale of District Librarians and Librarians in Professional Institutions and colleges were fixed in the scale of rs. 425-700 with effect from 1-1-1973. Thereafter, pay-scales of Librarians in government and non-Government colleges were fixed, pursuant to the recommendation made in the Report of Sen Commission in the pay-scale of Rs. 550-900 as per Government Resolution No. MIS-1076-4584-79-KH dated 6-10- 1979. The Government applied the said pay-scale of Rs. 550-900 with effect from 1-1-1973. In view of the fact that the pay-scales of College Librarians were altered with effect from 1-1-1973 as per above G. R. dated 6-10-1979, senior most Librarians who were working in the pay-scale of Rs. 425-700 were transferred to colleges in the pay-scale of Rs. 550-900 and junior Librarians working in the colleges were shifted as District Librarians or Professional Assistants in the pay-scale of Rs. 425- 700. 425-700 were transferred to colleges in the pay-scale of Rs. 550-900 and junior Librarians working in the colleges were shifted as District Librarians or Professional Assistants in the pay-scale of Rs. 425- 700. Accordingly, senior Librarians were transferred as College Librarians and junior Librarians were transferred as District Librarians or Professional Assistants. Reference has been made to separate recruitment rules for College Librarian as having been framed by the Government as per Notification dated 21-5-1986 under which one of the sources of recruitment is of District Librarian/professional assistant. It is the say of the Government that the pay-scales of College Librarians were further revised to Rs. 700-1600 as per Resolution dated 19-12-1983 and the qualifications for getting the scale (even by existing recruit) are Ist or IInd class b. A. /b. Com. /b. Sc. and Master degree in Library Science, Ist or IInd class M. A. / m. Sc. /m. Com. degree and/or IInd class of Bachelor degree of Library Science or diploma in Library Science. Thus, the stand of the Government is that the qualifications for College Librarians on one hand and the qualifications of District librarians/professional Assistants are not same. The scales are further revised to rs. 2200-4000 as per G. R. dated 14-9-1988 with effect from 1-1-1986 subject to fulfilment of prescribed qualifications. By virtue of the aforesaid changes although all the District Librarians/professional Assistants on one hand and College Librarians on the other hand were inter-transferred, it was so till upto 5-10-1979 since when college Librarians are not transferred as District Librarians or Professional Assistants and vice versa. However, the cadre of District Librarians and Professional Assistants is a feeder cadre for recruitment as College Librarians. ( 10 ) IN answer to the petition bearing Special Civil Appln. No. 878 of 1984 filed by one Mr. N. B. Patel it has been clarified that the decision would not be applicable in the present case on the facts noted above. Regarding Mr. D. J. Trivedi and Mr. K. K. Dave it has been asserted that Mr. D. J. Trivedi, Assistant Curator had been given demand difference in his seniority of Director of Higher Education and his pay fixation was made with effect from 1-1-1973 and that Mr. Regarding Mr. D. J. Trivedi and Mr. K. K. Dave it has been asserted that Mr. D. J. Trivedi, Assistant Curator had been given demand difference in his seniority of Director of Higher Education and his pay fixation was made with effect from 1-1-1973 and that Mr. K. K. Dave, who was a College Librarian since 1969 and continued to be College Librarian till 1976, was then transferred as District Librarian and, therefore, he had been given pay-scale of College Librarian from 1-1-1973. But subsequently he was a District librarian on existing pay and pay-scale. With regard to Mr. R. G. Raval it has been asserted that the pay fixation in the pay-scale of Rs. 550-900 was made on account of his being given demand difference. Thus, according to the Government, these instances are not comparable. ( 11 ) IN the affidavit-in-rejoinder the petitioners of Special Civil Application no. 2093 of 1986 have asserted that in view of the judgment of the Division Bench of this Court in the case of State of Gujarat v. N. B. Patel, reported in 1993 (2) glr 1172, it is not open for the respondent to deny that the petitioners are not discharging similar duties and functions with similar responsibilities as those of college Librarian. That decision has been maintained by the Honble Supreme court in Special Leave Petition No. 4652 of 1994. According to the petitioners qualifications of District Librarian/professional Assistants and College Librarians are same. They were also similarly placed in the pay-scales. Seniority is also common. The post of both the categories were same and inter-transferable. They are also discharging duties and functions of the same nature. Their responsibilities are also same. Hence, denial of higher pay-scale to them at par with College Librarians would be illegal, arbitrary, unreasonable and violative of Arts. 14 and 16 of the constitution. According to the petitioners, the Recruitment Rules of 1986 would have no allocation in the matter of pay and pay-scale claimed on the basis of resolution dated 6-10-1979. Even according to the said Rules prescribed qualification are a degree or diploma in Library Science from recognised University. They do not provide for any Master Degree as alleged in the affidavit-in-reply. ( 12 ) THE petitioners have further clarified that till upto 1987 the seniority list of District Librarians and College Librarians remained the same. On 16-2-1981 the respondents had transferred one Mr. They do not provide for any Master Degree as alleged in the affidavit-in-reply. ( 12 ) THE petitioners have further clarified that till upto 1987 the seniority list of District Librarians and College Librarians remained the same. On 16-2-1981 the respondents had transferred one Mr. M. I. Shaikh, District Librarian, Jamnagar (pay-scale Rs. 425-700) to the College Library, Bahauddin College, Junagadh in the pay-scale of Rs. 550-900. Thus, according to the petitioners, the petitioners and the College Librarians belong to one cadre only. They have referred to the duties and functions of making selection of books, purchasing books, classification of the books, circulation of the books, providing of necessary information regarding books and taking and maintaining stock of the books, as the common functions of the librarians working in the College Libraries as well as District Libraries. They have, however, further asserted that the District Librarians are having financial responsibility for the entire District Library whereas the College Librarians do not have such responsibility. They have also asserted that the District Librarians are working independently, whereas the College Librarians are working under the direct instructions and supervision of the Principal of the respective colleges. They have, therefore, claimed same pay-scale with effect from 1-1-1973 with 18% interest as has been made available to the College Librarians. ( 13 ) THE petitioners in Special Civil Application No. 12047 of 1994 are Gujarat rajya Sarkari Jaher Granthalaya Technical Karmachari Mandal and others. Their case is based upon the decision of this Court in the case of Shri N. B. Patel (supra) in S. C. A. No. 878 of 1984 confirmed in L. P. A. No. 189 of 1986 on 3-3-1993 and approved on 3-3-1994 in the S. L. P. filed against the same and dismissed by the honble Supreme Court. The petitioners stand in this petition is parallel to the stand of the petitioners in the aforesaid two petitions. The same can be said with regard to the stand of the Government. ( 14 ) I have heard the learned Advocates appearing on behalf of the petitioners and the learned A. G. P. s for the respondents. The first part of their submissions revolve round the difference in the pay-scales of the Librarians working in the government College Libraries and the Librarians working in the District Libraries of the Government Departments. ( 14 ) I have heard the learned Advocates appearing on behalf of the petitioners and the learned A. G. P. s for the respondents. The first part of their submissions revolve round the difference in the pay-scales of the Librarians working in the government College Libraries and the Librarians working in the District Libraries of the Government Departments. It is an admitted position that such difference is referable to the Government Resolution dated 6-10-1979 which provides for a revision of pay-scale of Librarians working in the Government colleges from Rs. 425-700 to Rs. 550-900 and the Resolution has made such revision of pay-scale effective from 1-1-1973. The petitioners who would be working in the District libraries of various Departments of the Government have been denied the benefit of the revision of the pay-scale either with effect from 1-1-1973 or with effect from an appropriate date. The petitioners through their learned Advocates seek to substantiate their claim with the aid of the some decisions of this Court which may presently be referred to. ( 15 ) ALONG with the petition bearing Special Civil Application No. 2473 of 1983 a copy of the judgment dated 18-4-1986 (Coram : R. C. Mankad, J. as he then was) in Special Civil Application No. 4627 of 1985 between Mrs. Panna R. Thakker v. State of Gujarat and Ors. has been annexed. That petition was filed by a Librarian employed in L. M. College of Pharmacy, Ahmedabad, praying for same treatment being given to her as was being given to Librarians working in arts, Science and Commerce colleges. Relying upon the decision in the case of N. C. Patel and Ors. v. State of Gujarat and Ors. in Special Civil Application No. 1946 of 1982, this Court directed the respondents to place the petitioner of that petition in the pay-scale of Rs. 700-40-1100-50-1300-Assessment-50-1600 with effect from 1-4-1980 with a qualification that she would not be required to acquire qualifications prescribed in Annexure-1 to the Resolution Annexure-E, in other words, the said petitioner would be entitled to the aforesaid pay-scale without insisting upon her possessing or acquiring the aforesaid qualifications. She was directed to be placed at the appropriate stage in the aforesaid pay-scale and to be paid arrears of salary as if she was placed in the aforesaid pay-scale with effect from 1-4-1980. She was directed to be placed at the appropriate stage in the aforesaid pay-scale and to be paid arrears of salary as if she was placed in the aforesaid pay-scale with effect from 1-4-1980. It can be seen that the petitioner in that case was an employee as a Librarian in a college and she could be said to be a College Librarian. ( 16 ) NEXT is the decision in the case of N. C. Patel and Ors. v. State and Ors. , in special Civil Application No. 1946 of 1982 reported in [xxiv (2)] 1983 (2) GLR 1526 . In that petition, the petitioners challenged the Governments failure to consider their demand for equal pay as per the pay of Librarians working in the Government and non-Government Arts, Science and Commerce colleges. The petitioners there were the Librarians working in the Medical colleges and the Pharmacy colleges getting 100% Government grant. They were being paid the pay-scale of Rs. 425- 700 dissimilar to the pay-scale paid to the Librarians in the aforesaid other colleges. This scale was made available to them in pursuance of the Desai Pay Commission recommendations. It appears from the decision that there are about 500 Librarians working in the Government and non-Government colleges affiliated to different universities in Gujarat. The aforesaid resolution dated 6-10-1979 has been referred to for the purpose of equation of pay of the Librarians working in the Medical colleges and the Pharmacy colleges, who were before this Court, with the pay-scale of Librarians working in the Arts, Science and Commerce colleges. Relying upon the decision in the case of Randhir Singh v. Union of India and Ors. , reported in air 1982 SC 879 this Court allowed the petition and directed the benefit of the aforesaid Government Resolution of the Education Department to be made available to the Librarians working in the Government and non-Government Medical colleges and the Pharmacy colleges with a declaration that the petitioners there would be entitled to revised pay-scale of Rs. 550-25-750-EB-30-900 with effect from 1-1- 1973. The difference in the salary was directed to be worked out within prescribed period. 550-25-750-EB-30-900 with effect from 1-1- 1973. The difference in the salary was directed to be worked out within prescribed period. Following passage from Randhir Singhs case (supra) was quoted :- "apparently, in view of the respondents, the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers, duties and responsibilities. We cannot accept this view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department notwithstanding that their powers, duties and responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments". ( 17 ) THERE is one more judgment of a learned single Judge (Coram : G. T. Nanavati, J. as His Lordship then was) rendered on 1-11-1985 in Special Civil application No. 878 of 1984 which has been canvassed in support of the claim made in these petitions. It is in the case of Shri Natvarlal Babaldas Patel, Mehsana v. The State of Gujarat and Anr. Reliance has been placed on this decision for the simple reason that the petitioner there was appointed by the Government as Librarian on 7-12-1970 and was posted in the D. K. V. College, Jamnagar on 21-1-1972. He was then transferred to the District Library at Bhavnagar where he continued to work till 30-7-1980. By order dated 31-7-1980 he was transferred from Jamnagar to R. G. T. College, Rajkot and was placed in the pay-scale of Rs. 550-900 instead of his previous pay-scale of Rs. 425-700. The pay-scale of Rs. 425-700 was given to the petitioner and other Librarians on the basis of the recommendations made by the Desai Pay Commission. The grievance of the petitioner was that even though by resolution dated 6-10-1979 the State Government decided to revise pay-scale of librarians working in the Government and non-Government colleges affiliated to universities from Rs. 425-700 to Rs. 425-700 was given to the petitioner and other Librarians on the basis of the recommendations made by the Desai Pay Commission. The grievance of the petitioner was that even though by resolution dated 6-10-1979 the State Government decided to revise pay-scale of librarians working in the Government and non-Government colleges affiliated to universities from Rs. 425-700 to Rs. 550-900 with effect from 1-1-1973, the benefit of that resolution was not given to the petitioner merely because during the period 1-1-1973 and 30-7-1980 he was serving as a Librarian in a District Library and not in any college. Upholding the contention of the petitioner that there was no rationale in making the distinction between the Librarians working in the District libraries and the Librarians working in the College Libraries, in the context of the fact that when the petitioner was appointed initially he was posted at D. K. V. College, jamnagar and thereafter transferred to District Library at Bhavnagar and again transferred to a College Library, it was held that the posts were equivalent and transferable and that the duties performed by the Librarians in District Libraries and the Librarians in College Libraries are the same and that principle of "equal pay for equal work" would be applicable and benefit thereof should have been given to the petitioner there with effect from 1-1-1973. Directions accordingly were given. ( 18 ) IT is the aforesaid last mentioned decision which appears to have been carried in Letters Patent Appeal bearing L. P. A. No. 189 of 1986 decided on 3-3- 1993 reported in 1994 (1) LLJ 1010. The same is also referred to from other report and the citation is State of Gujarat and Anr. v. Natvarlal Babaldas Patel, 1993 (1) gcd 377 . The Letters Patent Bench observed as under :-"the features taken note of by the learned single Judge are important on the subject and they do justify the application of the principle "equal pay for equal work" which doctrine of equality is enshrined in Art. 14 of the Constitution of india. In this connection, we are bound to take note of the pronouncement of the supreme Court in State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. , ( 1993 (1) LLJ 490 : AIR 1993 SC 286 ); a pronouncement cited by Mr. In this connection, we are bound to take note of the pronouncement of the supreme Court in State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. , ( 1993 (1) LLJ 490 : AIR 1993 SC 286 ); a pronouncement cited by Mr. D. G. Chauhan, learned Counsel for the petitioner, wherein for the application of the principle of "equal pay for equal work", the Court is called upon to keep in mind as more important and crucial the aspect of discharge of similar duties, functions and responsibilities. In our view, this test is amply satisfied in the present case and we are not able to appreciate and sustain the projection of a classification sought to be based on the Government resolution, as done before us for the first time. We can only call this theory as totally irrational and militating against a solemn principle of "equal pay for equal work", the application of which, in our view, is a must to the facts of the present case". The Letters Patent Appeal was accordingly dismissed making no order as to cost. ( 19 ) IT further appears that the aforesaid decision in the case of Natvarlal babaldas Patel (supra) was carried before the Honble Supreme Court of India in petition for Special Leave to Appeal (Civil) No. 4652 of 1994. The copy of the order dated 3-3-1994 passed by the Honble Supreme Court may be reproduced :-"delay condoned. We do not propose to express any opinion on merits since this is a case effecting a single respondent. The Special Leave Petition is dismissed. However, the question of law raised is left open". Placing reliance upon the aforesaid decision and on the averments with regard to the similarity in the duties, functions and responsibilities of the respective librarians (College Librarians and District Librarians as may be referred to in the this judgment), the petitioners, most of whom have been working as the District librarians in the Libraries of one or the other Government Departments have complained of the discrimination and prayed for equal treatment as is made available to the College Librarians as per Resolution dated 6-10-1979. ( 20 ) IN my opinion the decisions of this Court referred to hereinabove would clearly apply to the Librarians working in Government, whether as District Librarians or College Librarians, else it would clearly amount to giving discriminatory treatment to the District Librarians. The question regarding discrimination would obviously be dependent upon the facts concerning powers, duties and responsibilities and this Court had frequently expressed that there was no distinction on that score between the District Librarians and the College Librarians. This would, however, be subject to what has been noted from the subsequent event which was not canvassed previously at any point of time and which arises from the Rules framed in 1986. Reference has been made to a decision of a Letters Patent Bench in Letters patent Appeal No. 228 of 1993 with 226 of 1993 and 227 of 1993 (Coram : B. N. Kirpal, C. J. , as His Lordship then was and R. K. Abichandani, J.) pronounced on 7-4-1994. Following observation have been read from page 16 of the copy of the judgment supplied to this Court :-"it is not for the Court to embark upon a detailed survey of various factors which have gone into the recommendations made by the Commission and undertake reappraisal of the material. It is not at all disputed that proper norms have been adopted by the Commission in its recommendatory process and this Court need not try to substitute that expert body and the Executive Government in the task of pay fixation. It cannot be said that in taking the impugned decision the authority has acted arbitrarily or committed any grave error to justify interference by this Court. The question of equation of posts or equation of pay, must be left to the Executive government. The Pay Commission and the Government would be the best Judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by the Commission or Committee, the Court should normally accept the same and not try tinker with such equivalents unless it is shown that it was made with extraneous consideration. As held by the Supreme Court in Umesh chandra Gupta and Ors. If there is any such determination by the Commission or Committee, the Court should normally accept the same and not try tinker with such equivalents unless it is shown that it was made with extraneous consideration. As held by the Supreme Court in Umesh chandra Gupta and Ors. v. Oil and Natural Gas Commission, reported in AIR 1989 sc 29 , the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the Court to determine by relying upon the averments made in the affidavits of interested parties. The Supreme Court has, in secretary, Finance Department v. West Bengal Registration Service Association and Ors. , reported in AIR 1992 SC 1203 , held that it is well settled that the 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. It was observed that job evaluation was 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 purposes of different groups of employees. 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". There can be no dispute about the aforesaid propositions of law. Even in randhir Singhs case (supra) the same have been noticed. However, when on facts this Court had occasions to hold applicability of the Government Resolution dated 6-10-1979 to the particular District Librarian - petitioner in the respective matters, it would not be open to this Court to reopen such question. In the facts of the present case, therefore, the aforesaid decision would not be applicable. . However, when on facts this Court had occasions to hold applicability of the Government Resolution dated 6-10-1979 to the particular District Librarian - petitioner in the respective matters, it would not be open to this Court to reopen such question. In the facts of the present case, therefore, the aforesaid decision would not be applicable. . ( 21 ) IT has been submitted on behalf of the Government that the Resolution dated 6-10-1979 had to be passed on account of University Grants Commission ("u. G. C. " for short) making recommendations for the pay-scales of the staff of the colleges. The pay-scales of Librarians in the Government and non-Government colleges were accordingly fixed pursuant to the recommendations made in the report of Sen commission. Thus, making available the scale of Rs. 550-900 to them by passing government Resolution dated 6-10-1979 the Government applied the said pay-scale of Rs. 550-900 with effect from 1-1-1973. Prior to that all Librarians were getting the pay-scale of Rs. 425-700 as per the report of the Desai Pay Commission. This resulted in making of different staff pattern and different pay structure by classifying the Librarians into the College Librarians and District Librarians. It has accordingly been submitted that senior Librarians were transferred as College Librarians and junior Librarians were transferred as District Librarians or Professional Assistants. Intervention of the U. G. C. s pay-scale for the College Librarians (part of college staff) required the Government to frame separate recruitment rules for College librarians so as to meet with the requirement of U. G. C. Reference has, therefore, been made to these Rules which according to the submission of the learned A. G. Ps. earmarked the difference and rationalised the classification between the College librarians and the District Librarians. The notification publishing the Rules may be reproduced :-"notification education Department Sachivalaya, Gandhinagar. Dated the 21st May, 1986 gh/sh/22 MIS-1079-68746-B :- In exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India and in supersession of all existing Rules made in this behalf, the Governor of Gujarat hereby makes the following Rules to provide for regulating recruitment to the post or Librarian in Government Colleges in Gujarat Education Service, Class-III, namely :- 1. These Rules may be called the Librarian in Government Colleges Recruitment rules, 1986. 2. These Rules may be called the Librarian in Government Colleges Recruitment rules, 1986. 2. Appointment to the post of Librarian in the Government Colleges in Gujarat education Service, Class-III shall be made either - (a) by promotion of a person of proved merit and efficiency from amongst the persons working as District Librarian or Professional Assistant or Office Librarian having three years services as such or, (b) by direct selection. 3. To be eligible for appointment by direct selection to the post mentioned in rules 2, a candidate shall - (a) not be more than 30 years of age, (b) possess - (I) a Bachelors degree of a recognised University, and (II) degree or diploma in Library Science of a recognised University, (c) have practical experience in Library work of about two years, (d) have adequate knowledge of Gujarati or Hindi provided that the upper age limit may be relaxed in favour of a candidate already in service of Government of gujarat in accordance with the provisions of the Gujarat Civil Services Classifications and Recruitment General Rules, 1967, as amended from time to time. 4. The appointment by promotion and direct selection shall be made in ratio of 1:1 respectively. 5. The candidate appointed by direct selection shall be on probation for a period of one year. 6. The selected candidate shall be required to pass the departmental examination, if any and an examination in Hindi or Gujarati or both in accordance with Rules prescribed by Government from time to time. By order and in the name of the Governor of Gujarat, sd/- (K. R. Goswami) deputy Secretary to Government". ( 22 ) IT has been submitted that in none of the aforesaid decisions reference has been made to the aforesaid notification which is necessarily a subsequent development though the same might have been available when the matters/matter actually came to be argued before the concerned Court. It is, therefore, submitted that in respect of the post of Librarian in Government College in Gujarat Education Service, class-III, the Librarian in Government College Recruitment Rules, 1986 operate. It is, therefore, submitted that in respect of the post of Librarian in Government College in Gujarat Education Service, class-III, the Librarian in Government College Recruitment Rules, 1986 operate. By virtue of such Rules a College Librarian is to be appointed either by promotion, a person of proven merit and efficiency from amongst the persons working as district Librarian or Professional Assistants or Office Librarians having 3 years of service as such or by direct selection and the eligibility criteria for direct selection is inter alia possession of following qualifications :- (1) a Bachelors degree of a recognised University, and (2) degree or diploma in Library Science of a recognised University. Over and, above, practical experience in Library work of about two years. ( 23 ) ON the strength of the aforesaid Rules, it has been submitted on behalf of the Government that now there is a rational basis of classification between College librarians and District Librarians and such basis is the "educational qualification and other requirements. " It has also been submitted that the post of College Librarians has been made a promotional post from the post of District Librarian. In reply, it has been submitted that even if these Rules are to be applied on the assumption that by virtue of these Rules a rational classification has been brought into existence, it would not operate retrospectively and apply to those Librarians, who have been appointed prior to 21-5-1986. ( 24 ) IN my opinion, the answer to the rival submissions based on the aforesaid rules is to be found in the decision of the Apex Court in the case of the State of jammu and Kashmir v. Triloki Nath Khosa, reported in AIR 1974 SC 1 . In that case, the diploma holders in engineering challenged the validity of certain service rules framed by the Government of Jammu and Kashmir. A learned single Judge dismissed the petition, but in appeal in Division Bench of Jammu and Kashmir High Court took the view that the impugned rules were violative of Arts. 14 and 16 of the constitution. The question that arose was whether persons drawn from different sources and integrated into the one class could be classified for the purpose of promotion on the basis of their educational qualifications, the classification being that between the diploma holders and the degree holders. 14 and 16 of the constitution. The question that arose was whether persons drawn from different sources and integrated into the one class could be classified for the purpose of promotion on the basis of their educational qualifications, the classification being that between the diploma holders and the degree holders. It was also contended that such rules did not have retrospective application. After referring to the rival submissions, the Apex Court held that the classification on the basis of educational qualifications would be a rational classification. In this connection, para 40a of the citation would assume importance and may be reproduced :-"educational qualifications have been recognised by this Court as a safe criterion for determining the validity of classification. In State of Mysore v. P. V. Narasinh rao, 1968 (1) SCR 407 : AIR 1968 SC 349 ) where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non-matriculates in a lower scale, it was held that Arts. 14 and 16 do not exclude the laying down of selective tests nor do they preclude the government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. In Ganga Ram v. Union of India, 1970 (3) SCR 481 at p. 488 : ( AIR 1970 SC 2178 ) it was observed that : "the State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments". In the Union of India v. Dr. (Mrs.) S. B. Kohli, AIR 1973 SC 811 (813) a Central health Service Rule requiring that a Professor in Orthopaedics must have a Postgraduate degree in the particular speciality was upheld on the ground that the classification made on the basis of such a requirement was not "without reference to the objective sought to be achieved and there can be no question of discrimination". The argument that a degree qualification was not the only criterion of suitability was answered laconically as "strange". The argument that a degree qualification was not the only criterion of suitability was answered laconically as "strange". ( 25 ) IT was, therefore, held that such a classification made under the rule in question as between the graduates and the diploma holders for the purpose of promotion to the cadre of Executive Engineer from the cadre of Assistant Engineers was held to be not violative of Arts. 14 and 16 of the Constitution. This is the first answer which can be given to the submissions made on behalf of the rival parties in the matters in hand. The second answer is also found from para 22 of the citation, which says as under :-"it is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall a promotion already made or reduce a pay-scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard". ( 26 ) IN the case in hand, the rules quoted above on the face of them read prospective, in the sense that the educational qualifications prescribed for being a college Librarians would obviously be applicable to those who enter in the service as College Librarians on or after the date of the framing of the rules. They would be prospective in the sense that classification of "college Librarians" and "district librarians" on the basis of qualifications and experience has for the first time been introduced. They would be prospective in the sense that promotional avenue on the basis of proven merit and efficiency has been for the first time introduced. They would also be prospective in the sense that ratio of 1 : 1 between direct selection and promotion has also been for the first time introduced by the aforesaid rules. Besides, there is no retrospective operation expressed or implied in the rules. They would also be prospective in the sense that ratio of 1 : 1 between direct selection and promotion has also been for the first time introduced by the aforesaid rules. Besides, there is no retrospective operation expressed or implied in the rules. ( 27 ) IT would be clear from what is stated above that whereas the rules bring into play a rational classification based on educational qualifications and other criteria in the context of the events that can be gathered from the facts noted hereinabove, the same would have to be made applicable to those who have entered Government service as Librarians subsequent to the passing of the aforesaid rules. It would, therefore, mean that the scale that would be available to the College Librarian, namely, Rs. 550-900 would also have to be made available to a District Librarian who entered the post before 21-5-1986. ( 28 ) IT has been submitted on behalf of the respondents that there had been a revision of pay-scale of teachers, librarians and physical education personnel in universities and colleges, which resulted in passing of Government Resolution No. MIS-1187-55843-KH dated 14-9-1988 in Education Department of the Government. In that resolution, reference has been made to earlier Government Resolution No. G. R. E. D. MIS-1075-4947-KH dated 23-11-1976 and Government of India, Ministry of Home Resources Development, Department of Education letter Nos. F-1 21/87- ui dated 17-6-1987 and 27-7-1988. The relevant text of the resolution is contained in paras 2 and 3 thereof which would read as under :-"2. Government has since considered this issue carefully and it has been decided that the pay-scales of teachers in Universities and non-Government and Government affiliated colleges and those of librarians and physical education personnel should be revised with effect from 1st January, 1986. The terms and conditions of revision of pay-scales of teachers are mentioned in Appendix I and those of librarian and physical education personnel are mentioned in Appendix II appended to this resolution. The details of revised pay-scales have been in Annexure I and the formula for fixation of pay in the revised scale is given in Annexure II to the appendices to this Resolution. 3. The details of revised pay-scales have been in Annexure I and the formula for fixation of pay in the revised scale is given in Annexure II to the appendices to this Resolution. 3. The Central Government will provide assistance to the State Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of scales of pay of teachers, librarians and physical education personnel in universities and Government and non-Government colleges for the period from 1st january, 1986 to 31st March, 1990 in respect of posts which were in existence as on 1st January, 1986. The Director of Higher Education shall claim the grant from government of India for the period from 1st January, 1986 onwards and shall credit the share of Government of India under the Head No. 0202-Education Sports, Art and Culture and 01-General Education 203-University and other Higher Education (b) Other Receipt (i) Contribution from the University Grants Commission". Insofar as Librarians are concerned their scale as contained in Annexure I to appendix II would be as under :- existing scale Revised scale rs. 700-1600 Rs. 2200-4000 ( 29 ) FURTHER reference has been made to Finance Department Government resolution No. AOP-1091-4-M dated 21-2-1991 with the title "report of the Expert committee for Pay Revision of Library Staff in Gujarat State". The resolution would read as under :-"government had constituted an Expert Committee under the Chairmanship of Shri K. J. Majmudar, Reader and Head of Department of Library and Information, Science, Maharaja Sayajirao University of Baroda which submitted its Report in September, 1990. Among other things, the Committee was required to study the recommendations made by the Review Committee for pay-scales of librarians appointed by the Government of India and suggest the scales of pay within the pay-scales recommended by the Fourth Central Pay Commission and approved by the Government of India. 2. 1 After careful consideration of the recommendations made by this Committee the Government has decided to introduce following pay structure for Library Staff (other than University/college librarians) with effect from 1st January, 1991.