Judgment D.H. Waghela J.—Invoking Clause 15 of the Letters Patent, the appellant Staff Unions of the Government Arts and Science Colleges, Technical Education Institutions and other colleges affiliated to the Gujarat University have challenged decision dated 22.12.1997 of learned Single Judge of this Court in Special Civil Application No. 290 of 1986. The members of the appellant Unions and Association were working as Laboratory Assistants under the Directorate of Higher Education, Directorate of Technical Education and non-government colleges affiliated to the Gujarat University. Their grievance was that Laboratory Assistants working in Primary Teachers Training College were granted higher pay scales, although they were working under the same department of the State Government, discharging same duties and functions with same responsibilities and qualifications, but the members of the appellants, though senior and recruited earlier were denied parity in the pay scale and wages. 2. While rejecting the petition of the appellants, learned Single Judge has, in the impugned decision, taken the view that the Third Pay Commission had considered the issue of pay scales applicable to two categories of Laboratory Assistants and if anything was done thereafter to remove anomaly or inequality, it would directly cause many more anomalies and inequalities. Learned Single Judge has also accepted the case of the respondent that the higher pay scale given to the Laboratory Assistants in Teachers Training Colleges was the result of starting of a particular project in the year 1971 and higher pay scale was given to them erroneously, and such error or illegality cannot be extended and allowed to be perpetuated and no one could claim such benefit on the basis of the doctrine of equality. The Court believed and accepted that the Government had sought to correct the error by issuing another resolution in 1989 by equalizing the pay scale of the Laboratory Assistants, and, thus there was no meaningful, deliberate discrimination and no denial of equality. It was also held that since the Laboratory Assistants represented by the appellants were in the same equivalent category of their pay scales along with several other homogeneous groups, no relief could be granted. 3. Being aggrieved by the dismissal of their petition, the appellants have re-agitated their argument of clear discrimination and violation of Articles 14 and 16 of the Constitution. 3. Being aggrieved by the dismissal of their petition, the appellants have re-agitated their argument of clear discrimination and violation of Articles 14 and 16 of the Constitution. In order to appreciate the contentions of the parties it would be appropriate to recount the following indisputable facts of the case. 3.1 Prior to August 1971 all the Laboratory Assistants (“Lab-Assistants” for short) working under the Directorate of Higher Education and Directorate of Technical Education of the State Government were placed in the pay scale of Rs. 130-240 and after coming into force of the Third Pay Commission w.e.f. 1.1.1973 their pay scale was revised to Rs. 260-430, for holder of SSC or higher qualification and to Rs. 260-350 for non-matriculates. The Lab-Assistants working in non-government colleges affiliated to Gujarat University were also given that pay scale. On the other hand, 64 new posts of Lab-Assistants were created on 18th August 1971 by the State Government with the pay scale of Rs. 175-345 for appointments in the Primary Teachers Training Colleges. At the time of making appointments on those new posts, no recruitment rules were framed or followed, even as they were recruited through open advertisement or through sponsorship of employment exchanges concerned. Thereafter, the Gujarat Educational Institutions (Pre-primary and Primary Teachers Training Colleges) Rules, 1984 were framed and qualifications for the post of Lab-Assistants were prescribed. Although some of the appointees would not have fulfilled the qualification criteria, they were not only regularized in service but they continued to get their wages in the higher pay scale of Rs. 175-345, with revision on that basis from time to time. 3.2 The Staff Association of the Lab-Assistants made a representation on 16.2.1972 for corresponding revision of their pay scale and that representation was forwarded with remarks “specially important and urgent” by the Director of Education to the Secretary, Education and Labour Department of the State Government. That letter of the Director of Education clearly stated that the Lab-Assistants employed in science colleges and other government colleges were shouldering more responsibility and did not have any opportunity of promotion; and the disparity in their wages vis-a-vis the staff in Primary Teachers Training Colleges was improper. Therefore, adoption of higher pay scale for them was recommended and additional expenditure of Rs. 77,400/- for 86 Lab-Assistants concerned was requested to be approved. Therefore, adoption of higher pay scale for them was recommended and additional expenditure of Rs. 77,400/- for 86 Lab-Assistants concerned was requested to be approved. The Gujarat State Government Colleges Laboratory Staff Association, recognized by the Government, also made a representation to the Secretary of the Pay Commission vide its representation dated 30th August 1973, pointing out anomalies in the pay structure of various institutions and cadres including that of the Lab-Assistants. A reminder to consider that representation was also sent on 15.10.1973. Thereafter, vide letter dated 2.1.1976 of Deputy Director of Education addressed to the Secretary, the Government was again urged to equalize pay scale of the Lab-Assistants and it was urged that necessary orders of the Government should be obtained for granting pay scale of Rs. 350-600 for the Lab-Assistants. Letter to similar effect was again written by the office of Director of Education to the Secretary on 12th October 1976, with elaborate justification therefor. Similar letter was written on 14.2.1977 demanding revision of pay scale, with a detailed comparative statement pointing out identical process of recruitment and identical nature of duties and responsibilities of all the Lab-Assistants. The Secretary of the Education Department replied to the Staff Association on 15.9.1980 that the issue was under consideration of the Government and by letter dated 16.3.1982 the Laboratory Staff Association was again assured that all aspects of the issue will be considered by the Government in consultation with the Finance Department. Again on 10.5.1983, the Director of Higher Education wrote to the Secretary, Education Department, that the pay scale of Lab-Assistants were required to be revised with effect from 1.1.1973, in view of the fact that the duties and responsibilities of Lab-Assistants employed in the colleges were not lower than those in the Primary Teachers Training Colleges. The Education Department, however, forwarded a note on anomalies to the Secretary of Third Pay Commission. Similarly, the Gujarat University also wrote on 3.5.1980 to the Secretary, Education Department, to revise the pay scale of laboratory staff in view of obvious anomalies and lack of any opportunity of promotion for the Lab-Assistants. The Education Department, however, forwarded a note on anomalies to the Secretary of Third Pay Commission. Similarly, the Gujarat University also wrote on 3.5.1980 to the Secretary, Education Department, to revise the pay scale of laboratory staff in view of obvious anomalies and lack of any opportunity of promotion for the Lab-Assistants. 3.3 Pursuant to representations for removal of anomalies within a particular cadre on account of the Gujarat Civil Services (Revision of Pay) Rules, 1987 necessary information in the prescribed format was submitted by the Education Department to the Secretary of the Pay Commission on 24th December 1990, of which the relevant part reads as under: Name of the Admn. Deptt. : Name of Head of Deptt. Education Department Dir, Higher Education. 1. Particulars of the post Lab Asstt. Consideration. 1.1. Designation Lab Asstt. 1.2. No. of such posts sanctioned in Position as on (Latest available the Department. date) – 90 1.3 1.4 Pre-revised scale. Rs. 260-430 1.5 Pay scale recommended by Rs. 730 - 1150 Ahmedi commission. 1.6 . . . . . . . . . . . . . . . . . . 1.7 Revised pay scale based on the Rs.1150-1500 report of Expert Committee. 11. Particulars of posts in the Department carrying similar scales of pay. IV. Particulars of the next post of promotion V. Gist of representations received. (i) 5.2 What is the request made in the representation. 5.3 What are the ground which this request has been justified. 6. Recommendation : 6.1 Recommendation of Admini- stration Department. 3.4 As against the above facts on record, the Deputy Secretary of the Education Department of the Government filed affidavit-in-reply in the petition to, inter alia, state as under: “. . . . . . . . . According to the thinking of the Government, the posts of Laboratory Assistants in Primary Training Colleges and Uttar Bunayadi Training Colleges were sanctioned as a part of a project and their pay scales were erroneously fixed at Rs. 175-345, when the posts were created in 1971. The Government felt that the pay scales of Laboratory Assistants in Government and Non-Government colleges could not be fixed pay scales of Laboratory Assistants in Primary Training Colleges and Uttar Bunayadi Training Colleges. The Government, therefore, did not accept the proposal for revising the pay scale of Laboratory Assistants in Government and non-Government colleges. The Government felt that the pay scales of Laboratory Assistants in Government and Non-Government colleges could not be fixed pay scales of Laboratory Assistants in Primary Training Colleges and Uttar Bunayadi Training Colleges. The Government, therefore, did not accept the proposal for revising the pay scale of Laboratory Assistants in Government and non-Government colleges. In the meanwhile, the 3rd Pay Commission (Desai Pay Commission) was appointed, and that Commission also did not accept the proposal for giving the same pay scale to the Laboratory Assistants in Government and non-Government Colleges as in the Primary Training Colleges and Uttar Bunayadi Training Colleges. . . . . . . . . . Thereafter, on the formation of the IVth Pay Commission on the principle of pay scale to pay scale adjustment, pay scale of Rs. 1150-1500 for SSC Laboratory Assistants and pay scale of Rs. 950-1400 for Non SSC Laboratory Assistants were sanctioned. It is further added that as there was anomaly between the pay scale of laboratory assistants of Primary Training Centers and Government Colleges, Government have revised the pay scale of lab. assistants of primary training colleges to that of lab. assistants of Govt. Colleges from 1986 vide G.R. dated 17.7.1989. A copy of G.R. dated 17.7.1989 is hereby annexed and marked as Annexure-3. So now pay scale of Rs. 1150-1500 is being given to lab. assistants of primary training colleges and Govt. Colleges. Moreover, a senior Scale of Rs. 1350-2200 is also being given vide G.R. dated 17.7.1989 to Lab. Assistants of primary training colleges and Govt. Colleges after completion of service of 17 years on or after 1.1.86. . . . . . . . . . But, the Association has demanded to revise pay scale from 1.1.73 which cannot be accepted as the pay scale of Lab. Assistants of Primary Training Colleges were sanctioned as a part of the project and that too erroneously and that cannot be the basis for demanding higher pay scales. . . . . . . . . . As revision of pay scales and other incidental matters fall within the purview of the Pay Commission, the Finance Department of the Government of Gujarat, has by a circular dated 13.2.1995 directed that: (i) Revision of pay in any form (ii) Modification of any allowances (except D.A.) (iii) Revision of Special Pay (iv) Benefit of Selection grade, Sr. Scale, stagnation relief, etc. Scale, stagnation relief, etc. (v) redesignation of posts and (vi) up gradation of posts and any relaxation in higher pay scale. should not be considered at any level by the State Government. . . . . . . . .” 3.5 The Government Resolution dated 17.7.1989 referred to herein above categorically stated that the work and duties of the Lab Assistants employed in the colleges were not lower than the Lab Assistants in Adhyapan Mandirs, and hence, it was necessary to bring equality in their pay scales. However, the revised pay scale of Rs. 1150-1500 for the Lab Assistants was to be applied to all the Lab Assistants with effect from 1.1.1986 and senior scale of Rs. 1350-2200 was to be granted upon completion of seventeen years of service. At the same time, the Lab Assistants employed in Adhyapan Mandir and Bal Adhyapan Mandir, (P.T.T. colleges) who were already in the pay scale of Rs. 1350-2200 were to continue to draw wages in the higher pay scale as special pay till their resignation, promotion or retirement. Thus, in effect, the inequality in favour of Lab Assistants newly appointed in the Primary Teachers Training Colleges and continued for eighteen years was preserved and protected while revising and reducing the pay scale for future entrants in the cadre. 4. It is amply clear from the above record of facts that, even upto filing of the original petition by the appellants, it was nowhere the case of the Government that the grant of higher pay scale to Lab-Assistants employed in the Primary Teachers Training Colleges was either erroneous or illegal and it was for the first time and only in the affidavit-in-reply of the Deputy Secretary, mentioned that pay of Lab-Assistants employed in PTC colleges were erroneously fixed. It also stands out clearly that even at the time of making Government Resolution dated 17.7.1989 disparity in the pay scales was maintained, inspite of the clear recommendation of the Administration Department that the anomaly was required to be rectified, as stated in horizontal column No. 5.3 and 6.1 in the format reproduced hereinabove in Paragraph 3.3. 5. In the above facts and circumstances, it was submitted by Learned Counsel, Mr. D.G. Chauhan, appearing for the appellants that learned Single Judge had completely ignored the relevant material on record and the admitted fact of discrimination without any basis or justification. 5. In the above facts and circumstances, it was submitted by Learned Counsel, Mr. D.G. Chauhan, appearing for the appellants that learned Single Judge had completely ignored the relevant material on record and the admitted fact of discrimination without any basis or justification. He further submitted that the respondents could not be permitted to make out a new and inconsistent case before this Court. He also submitted that the legitimate claim of the Lab-Assistants concerned in this litigation could not be legally defeated by any perceived or projected likelihood of other anomalies or inequalities being created. He relied upon judgment of the Apex Court in Jaipal and Others vs. State of Haryana and Others [ AIR 1988 SC 1504 ] for the following proposition. “6. . . . . . . . . . Having regard to these facts and circumstances we are of the view that there is no difference in the nature of duties of the instructors and squad teachers and both of them carry out similar work under the same employer. The doctrine of equal work equal pay would apply on the premise of similar work but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with same responsibility, under similar working conditions the doctrine of ‘equal work equal pay’ would apply and it would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work.” 5.1 Learned Counsel also relied upon recent decision of the Apex Court in Official Liquidator vs. Dayanand and Others [ (2008) 10 SCC 1 ] in support of the submission that the principle of equal pay for equal work is not an abstract doctrine and can be enforced by reading it into doctrine of equality enshrined in Articles 14 and 16 of the Constitution. 6. As against above case of the appellants, learned AGP, Ms. Monali Bhatt, appearing for the respondents defended the impugned decision on the basis of the affidavit-in-reply, partly reproduced hereinabove. She submitted that the Lab-Assistants in the PTC colleges were originally appointed temporarily and on a project and the nature of work and responsibilities of such Lab-Assistants were different from the Lab-Assistants represented by the appellants. Monali Bhatt, appearing for the respondents defended the impugned decision on the basis of the affidavit-in-reply, partly reproduced hereinabove. She submitted that the Lab-Assistants in the PTC colleges were originally appointed temporarily and on a project and the nature of work and responsibilities of such Lab-Assistants were different from the Lab-Assistants represented by the appellants. She relied upon recent decision of the Apex Court in State of Punjab and Another vs. Surjit Singh and Others [ (2009) 9 SCC 514 ] for the proposition that Court should insist on strict pleadings and proof of various factors and only because some juniors get the benefit, the same by itself could not be a ground for extending the same benefit to others. It is now well known that the equality clause contained in Article 14 can be invoked only where the parties are similarly situated and where the order passed in their favour are legal and not illegal. It is a positive concept. 6.1 The decision in State of West Bengal and Another vs. West Bengal Minimum Wages Inspector Association and Others [ (2010) 5 SCC 225 ] was relied upon for the following observations made therein. “18. The principles relating to granting higher scale of pay on the basis of equal pay for equal work are well settled. The evaluation of duties and responsibilities of different posts and determination of the Pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts. 19. The principle “equal pay for equal work” is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees. 28. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees. 28. The State Government categorically stated that the Pay Review Committee’s general recommendation that all posts carrying a particular scale of pay should all be given automatically the same higher pay scale could not be accepted, as the Committee did not make the recommendation after considering the duties and responsibilities attached to different categories of posts. Therefore, we are of the view that the State Government was justified in acting on the recommendation of the Third Pay Commission and rejecting the recommendation by the Pay Review Committee.” 6.2 State of Madhya Pradesh vs. Ramesh Chandra Bajpai [ (2009) 13 SCC 635 ] was relied upon for the proposition that the doctrine of ‘equal pay for equal work’ can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment/appointment, qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesale identity between the holders of two posts. It is also well settled that Article 14 of the Constitution carries with it a positive concept of equality. That article cannot be invoked for perpetuating illegality. To put it differently, an illegal or wrong order passed in one case cannot be made the basis for compelling a public authority to pass similar order in other cases. Even if the State implements an erroneous order passed by the Court, it cannot be precluded from challenging similar order passed in another case, simply because appeal was not preferred in the earlier case. 6.3 Union of India vs. Arun Jyoti Kundu and Others [ (2007) 7 SCC 472 ] was relied upon for the proposition that recommendations of the Pay Commission are subject to acceptance/rejection with modifications of the appropriate Government. 6.3 Union of India vs. Arun Jyoti Kundu and Others [ (2007) 7 SCC 472 ] was relied upon for the proposition that recommendations of the Pay Commission are subject to acceptance/rejection with modifications of the appropriate Government. So, unless the Government has accepted the recommendation to merge the cadres, the Court cannot proceed on the basis of the recommendations alone or to direct the Government to accept the recommendation. 6.4 Learned AGP also relied upon judgment in New Delhi Municipal Council vs. Pan Singh and Others [ (2007) 9 SCC 278 ] to submit that the Lab-Assistants employed in the PTC colleges constituted a distinct class and their pay scales cannot be directly applied to the Lab-Assistants working in other Government Colleges or even in non-government colleges affiliated to the Gujarat University. However, such legal proposition could not be deduced from the aforesaid judgment which had a totally different backdrop of facts and the decision rested upon ratio related to delay in approaching the High Court. 7. The above facts, rival contentions and perusal of the impugned judgment clearly lead to the conclusion that, although there was no controversy or dispute about the parity of posts, functions and responsibilities of the Lab-Assistants in question being of higher level or about the fact of the Lab-Assistants in PTT colleges being paid higher wages, the equality in the pay scale was denied only on the basis that the Lab-Assistants in the PTT colleges were appointed in different colleges under the same department and were offered higher pay scale from the start. The plea of error or illegality in granting higher pay scale to the Lab-Assistants in the PTT colleges was never alleged, established or even contended upto the end of the year 1990. Instead, even while issuing Government Resolution dated 17.7.1989 their pay scale and other benefits flowing therefrom were protected by the Government by taking a conscious decision and by offering lower pay scale to the Lab-Assistants in other Government colleges who were appointed much earlier and were senior to the Lab-Assistants employed in the PTT colleges. Thus, the very basis of the impugned judgment that there was an error or illegality in granting higher pay scale had no foundation in the facts of the case. Then, what remained was clear discrimination in the face of successive reports and recommendations of the higher officers of the Education Department itself. Thus, the very basis of the impugned judgment that there was an error or illegality in granting higher pay scale had no foundation in the facts of the case. Then, what remained was clear discrimination in the face of successive reports and recommendations of the higher officers of the Education Department itself. In fact, as detailed in Paragraph 3.3, the Education Department of the State Government had itself written to the Secretary of the Pay Commission as late as on 24th December 1990 that the posts of Lab-Assistants in Government colleges carried higher responsibilities and request of the Staff Association was just and fair. Thus, it was a case of conscious, irrational and wholly unjustified discrimination against the Lab-Assistants represented by the appellants. The apprehension or likelihood of further anomalies cannot be cited as a defence against violation of the fundamental rights enshrined in Articles 14 and 16 of the Constitution. Therefore, the original petition of the appellants was required to be allowed and the Lab-Assistants concerned in the petition were required to be granted the same pay scale and benefits at par with Lab-Assistants employed in the PTT colleges, run under the same department. Similarly, the benefit of senior pay scale after 17 years of service was also required to be accorded to the Lab-Assistants concerned, at par with their counterparts employed in the PTT colleges. In view of passage of time since the year 1971 and filing of the petition in the year 1986, the appellants have voluntarily waived arrears falling due for the period prior to 1.1.1986. 8. Therefore, the impugned judgment is set aside and the respondents are directed to place Lab-Assistants concerned in the pay scale of Rs. 1350-2200 with effect from 1.1.1986, considering their pay scale to be 175-345 from 19.8.1971 and Rs. 350-600 from 1.1.1973, on notional basis. 8. Therefore, the impugned judgment is set aside and the respondents are directed to place Lab-Assistants concerned in the pay scale of Rs. 1350-2200 with effect from 1.1.1986, considering their pay scale to be 175-345 from 19.8.1971 and Rs. 350-600 from 1.1.1973, on notional basis. The actual benefits accruing from application of the pay scale at par with Lab-Assistants in the PTT colleges with effect from 1.1.1986, alongwith consequential benefits of arrears of pay, increments, pay fixation and allowances applicable to the revised pay scale shall be calculated and paid to the Lab-Assistants concerned on or before 30th June 2011; and the Lab-Assistants, who may have, during the pendency of the petition and Letters Patent Appeal, passed away or retired shall, themselves or their legal heirs, be paid the difference in their retiral dues upon application of revised pay scales, as aforesaid, also before 30th June 2011. The appeal is allowed in the aforesaid terms with no order as to costs. P P P P P