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Madhya Pradesh High Court · body

2008 DIGILAW 18 (MP)

State of M. P. v. Rameshchandra Bajpai

2008-01-04

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
ORDER Kulshrestha, J. -- 1. This appeal under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 3.11.2004 passed by the learned Single Judge in WP No. 4005/2003. 2. It is not disputed that the respondent was appointed and is working as Physical Training Instructor in the Government Dhanvantari Ayurvedic College. The respondent had filed a petition for seeking parity in pay scales with the other Teachers notwithstanding that he was Physical Training Instructor in view of the decision of the Supreme Court in AIR 1997 SC 3433 [P.S. Ramamohana Rao v. A.P. Agricultural University and another] and the other circumstances brought on record. The learned Single Judge by his impugned order has given a direction that the respondent should also be considered for pay scales applicable in the case of UGC Teachers. 3. Learned Additional Advocate General has strenuously contended that since the service of the respondent (original petitioner) is governed and regulated by the Rules called the M.P. Public Health System of Medicine and Homeopathy Class II Medical Services Recruitment Rules, 1987. on the basis of the ratio of the case in P.S. Ramamohana Rao (supra) he could not have claimed parity with the post of Teachers merely because his duty is to teach skills of various games as well as their rules and practices. In particular, it has been contended that in Schedule II to the Rules. the post of Physical Training Instructor has been classified and the appointment is made directly on the posts. Learned Additional Advocate General has also referred to Schedule III to the rules which in Item No.8 provides that Physical Training Instructor should have Diploma in Physical Training. It has further been submitted that separate pay scales have been provided for Teachers and the Physical Training Instructors. Under these circumstances, the learned Additional Advocate General contends that since the Teachers and the Physical Training Instructors constitute different classes, it does not amount to practicing any discrimination, much less hostile, by providing separate pay scales for the post. He has further submitted that while according to UGC, a Teacher in College is required to hold higher qualifications such as Ph.D., as per the rules the Physical Training Instructor is required to have a Diploma in Physical Training, only. He has further submitted that while according to UGC, a Teacher in College is required to hold higher qualifications such as Ph.D., as per the rules the Physical Training Instructor is required to have a Diploma in Physical Training, only. It is on the basis of this distinction pointed out by the learned Additional Advocate General, he prays that the order passed by the learned Single Judge be set aside. 4. Per Contra, the learned senior counsel for the respondent has invited attention to the return filed by the present appellant and specially to Annexure R-I appended thereto. By Annexure R-1, in pursuance of the decision of this Court in LPA No. 5438/2000 rendered on 1.3.2000, a large number of Physical Training Instructors have already been granted UGC Pay Scale and the State has not assailed the said order of the Division Bench of this Court and without demur, has followed the direction. Learned senior counsel for the respondent, therefore, contends that there is no reason to make any departure in the case of the present respondent. 5. We have heard the learned counsel for the parties and perused the record. 6. While it is true that the rules governing and regulating the service of respondent No. 1 make distinction between the Physical Training Instructor and the Teacher in relation to the status and pay scales both, one cannot be oblivious of the fact that similar persons have already been granted UGC Scale against which no steps were taken to assail the earlier order. If the argument of the learned Additional Advocate General were to be accepted, it would create an anomaly between the two posts and between the persons manning the same post. If a large number of Physicial Training Instructors have already been granted the UGC Scale, we are of the view that we must not make any distinction between the case of the respondent and the cases of the other Instructors who belong to the same class. Even otherwise, the ratio of the case of the Supreme Court in PS. Ramamohana Rao (supra) points out the nature of the duties of the Instructors in drawing parity with the duties of the Teachers. Even otherwise, the ratio of the case of the Supreme Court in PS. Ramamohana Rao (supra) points out the nature of the duties of the Instructors in drawing parity with the duties of the Teachers. In view of the fact that the matter has become fait accompli insofar as the appellant State is concerned, we do not find any ground to deprive the present respondent of the benefit of the pay scale as the same has already been extended to other similarly situate Physical Training Instructors in Ayurvedic Colleges. 7. In view of the matter this appeal is dismissed but with no order as to costs. 8. Learned Additional Advocate General submits that since this appeal· was pending, steps were not taken to comply with the direction issued by the learned Single Judge and, therefore, time may be granted for complying with the order. Prayer is allowed, the appellants are granted four months time to comply with the order.