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2022 DIGILAW 290 (RAJ)

Rajendra Singh Rathore v. State of Rajasthan

2022-01-31

AKIL KURESHI, MADAN GOPAL VYAS

body2022
JUDGMENT : 1. The petitioners have challenged the vires of Rule 286A of the Rajasthan Panchayati Raj Rules, 1996. The petitioners seek pay parity with the Prabodhaks, in terms of the benefits granted to them under Rule 37A of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008. 2. Brief facts of the case are as under: The petitioners were working as ad-hoc teachers in the State Government schools. They were carrying designations such as “Shiksha Karmi, Shiksha Sahyogi or Para-Teachers” and were engaged under various schemes of the State Government for imparting education in the Government schools, particularly in rural areas. They were paid fixed honorarium. All the petitioners where eligible for appointment to the post of teacher grade-III. They appeared in the examination conducted by the Rajasthan Public Service Commission (‘RPSC’ for short) for selection and appointment to the said post in the year 2007-2008. All the petitioners were selected and appointed as teacher grade-III in Government schools. 3. To deal with the issue of large number of ad-hoc teachers working under different schemes of the State Government, the State of Rajasthan in exercise of powers under Section 102 read with Section 89 of the Rajasthan Panchayati Raj Act, 1994, framed the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 (hereinafter to be referred to as ‘the Rules of 2008’). The cadres of Prabodhak and Senior Prabodhak were constituted under these Rules. Detailed provisions were made for filing up of these posts. Rule 37 of the Rules provides for pay during probation. As per this Rule, a probationer trainee appointed in the service by direct recruitment would be paid monthly fixed remuneration during the period of probation at such rates as may be fixed by the Government from time to time. Rule 37A was inserted on 08.09.2008. This Rule pertains to fixation of initial pay of Prabodhaks having experience beyond 5 years. It provides that a Prabodhak appointed as a probationer trainee on successful completion of period of probation shall be granted one increment for every additional 3 years of continuous teaching experience gained before his appointment beyond the required minimum 5 years of continuous teaching experience without break in any recognized educational institution/educational project. 4. The grievance of the petitioners is that this benefit, which is granted to the Prabodhaks, is not made available to them. 4. The grievance of the petitioners is that this benefit, which is granted to the Prabodhaks, is not made available to them. According to the petitioners, they also had similar experience as para teachers and if the principle contained in Rule 37A of the Rules of 2008 were to be applied to them, they would also get additional increment in their pay scales. The petitioners contend that they hold the same educational qualifications and experience as a Prabodhak. They also perform the same nature of duties and carry the same responsibilities as a Prabodhak. Despite these similarities, a Prabodhak receives higher pay than the petitioners, which according to the petitioners, amounts to discrimination and is violative of Articles 14 and 16 of the Constitution of India and also breaches the principle of equal pay for equal work. Rule 286A of Rajasthan Panchayati Raj Rules, 1996 (hereinafter to be referred to as ‘the Rules of 1996’) provides that the probationer trainee appointed to the service by direct recruitment shall be paid fixed monthly remuneration during the period of probation at such rates as may be fixed by the Government from time to time. This Rule is thus pari materia to Rule 37 of the Rules of 2008. However, since Rules of 1996 do not contain any Rule similar to Rule 37A of the Rules of 2008, the petitioners contend that Rule 286A is discriminatory and therefore violative of Articles 14 and 16 of the Constitution of India and hence unconstitutional. 5. The State Government filed a reply and opposed the petition. The case put forth by the respondents in affidavit is that there is a vast difference between a Prabodhak and teacher grade-III, which post the petitioners are holding. It is pointed out that a teacher grade-III is a regular cadre from which multiple promotions are available to them. As against this, a Prabodhak is not entitled to promotion except for one promotion as a Senior Prabodhak. It is pointed out that at the time of regular selection to the post of teacher grade-III, not only the candidates like the petitioners who have past experience as ad-hoc teachers but even other candidates who had not so worked as ad-hoc teachers in the past would be considered, provided they fulfill other eligibility requirements. It is pointed out that at the time of regular selection to the post of teacher grade-III, not only the candidates like the petitioners who have past experience as ad-hoc teachers but even other candidates who had not so worked as ad-hoc teachers in the past would be considered, provided they fulfill other eligibility requirements. Granting benefit of additional increment to the petitioners will in fact create a separate class within the class of teacher grade-III, which would be impermissible. 6. Under such background, learned counsel Ms. Nupur Bhati for the petitioners submitted that the petitioners and the Prabodhaks had discharged duties as ad-hoc teachers for the State Government under similar circumstances. The petitioners had applied for regular teaching posts. They were found eligible and selected during the selection process undertaken by the State Public Service Commission. They were therefore appointed on regular post as teacher grade-III. Many of the Prabodhaks who might have applied were not selected. They continued as ad-hoc teachers till the State Government framed the Rules of 2008 and absorbed them in a newly created cadre of Prabodhaks. After their engagement as Prabodhaks, these teachers perform the same duties and responsibilities as the petitioners are presently performing. They hold the same qualifications and experience. The act of the State Government to grant additional increment for the past experience to Prabodhak excluding the petitioners was thus discriminatory. This breaches the principle of equal pay for equal work. In support of her contention, learned counsel relied on following decisions in the case of State of Punjab and Others vs. Jagjit Singh and Others, 2017 (1) SCC 148 , in which it was observed that it is fallacious to determine artificial parameters to deny the benefit of equal pay for equal work. More so, in a welfare State it was observed that any act of paying less wages as compared to others similarly situated constitutes an act of exploitative enslavement emerging out of domineering position of the State. In case of Union of India and Others vs. Atul Shukla and Others, 2014 (10) SCC 432 , it was observed that method or mode of recruitment entering into the same cadre in Government service is an impermissible parameter for pay fixation. In case of Union of India and Others vs. Atul Shukla and Others, 2014 (10) SCC 432 , it was observed that method or mode of recruitment entering into the same cadre in Government service is an impermissible parameter for pay fixation. It was observed that so long as two employees are part of same cadre or rank, they cannot be treated differently either for the purpose of pay and allowances or other conditions of the service. 7. On the other hand, Mr. Sunil Beniwal, Additional Advocate General appearing for the State opposed the petition contending that the cadres of teacher grade-III and Prabodhak are vastly different and have been framed in different backgrounds. There are different qualifications and the promotional avenues are also different. State considering the fact that the promotional avenues available to the Prabodhaks are limited, inserted Rule 37A in the said Rules. Such benefit cannot be granted to the petitioners who belong to an entirely different cadre. 8. To appreciate the controversy, we may recall that the petitioners who were previously working as ad-hoc or para teachers with the State Government under different schemes, applied and were regularly selected to the post of teacher grade-III by the State Public Service Commission. They are discharging their duties on the said post since their recruitment. On the other hand, there were large number of ad-hoc teachers who were working with the State Government since long under similar schemes. They were paid fixed honorarium by the Government from time to time. They neither enjoyed regular scales nor permanency of tenure. Apparently, to accommodate eligible and suitable para teachers on more permanent setup, the State Government framed the Rules of 2008. We may take note of the salient features of these Rules. Rule 4 pertains to composition and strength of the service. As per Sub-Rule (1) of Rule 4 read with the schedule, the cadres of Prabodhak and Senior Prabodhak were constituted. Rule 6 pertains to method of recruitment and provides that recruitment to the service shall be made as a direct recruitment in accordance with Part IV of the Rules and promotion in accordance with Part V. Post of Prabodhak would be filled 100 percent by way of direct recruitment. Rule 6 pertains to method of recruitment and provides that recruitment to the service shall be made as a direct recruitment in accordance with Part IV of the Rules and promotion in accordance with Part V. Post of Prabodhak would be filled 100 percent by way of direct recruitment. Eligibility criteria for direct recruitment were Senior Secondary School certificate or equivalent and the candidate must have at least 5 years continuous teaching experience without any break in any recognized educational institution/educational project. The post of Senior Prabodhak would be filled 100 percent by promotion from the cadre of Prabodhak. 9. As noted, Rule 37 prescribes that a probationer trainee appointed by direct recruitment shall be paid monthly fixed remuneration during the period of probation at such rates as may be fixed by the Government from time to time. Rule 37A was subsequently inserted and reads as under: “37A. Fixation of initial pay of Prabodhak having experience of beyond 5 years - A Prabodhak appointed as probationer-trainee of fixed remuneration, on successful completion of period of probation, shall be granted one increment for every additional three years of continuous teaching experience gained before his appointment, beyond the required minimum 5 years continuous teaching experience without any break in any recognized educational institution/educational project.” 10. As per this Rule, a Prabodhak after completion of probation training would be granted one increment for every 3 additional years of continuous teaching experience over and above minimum 5 years required for eligibility. 11. It is true that for a person holding the post of teacher grade-III, no such benefit of additional increment for past experience is granted under the Rules of 1996. It may also be true that the petitioners who had applied for regular selection to the post of teacher grade-III were found suitable and therefore selected and appointed to the said post. As against this, it is possible that many ad-hoc teachers who may have applied for the same post were not selected and therefore would have continued as para teachers till were appointed as Prabodhaks. In this context, learned counsel for the petitioners may perhaps be correct in pointing out that it would be somewhat anomalous that a more meritorious candidate gets no benefit of the past experience as compared to the Prabodhaks, who are going to be benefited as per Rule 37A of the Rules of 2008. In this context, learned counsel for the petitioners may perhaps be correct in pointing out that it would be somewhat anomalous that a more meritorious candidate gets no benefit of the past experience as compared to the Prabodhaks, who are going to be benefited as per Rule 37A of the Rules of 2008. However, the question of pay parity and the principle of equal pay for equal work has certain inherent limitations. It is stated time and again by this Court as well as the Supreme Court that the equation of post and pay is ordinarily left to the State Government, who is duly aided and advised by expert bodies such as pay commissions. Unless on all parameters, such as educational and experience qualifications required for the post in question, duties, responsibilities and workload involved and such other factors, there is similarity, the principle of equal pay for equal work cannot be invoked. Mere nomenclature being similar would not be sufficient. 12. In this context, we may recall that the petitioners are appointed as teacher grade-III whereas the persons with whom the petitioners compare the pay structure, hold the post of Prabodhaks. The two are entirely different cadres. The qualifications prescribed for both are different. It was essentially to mitigate the difficulties of large number of ad-hoc teachers who would have worked for the State Government under different schemes and years together without any benefit of permanency of regular pay scales that the Rules of 2008 were framed. Perusal of the Rules would show that they were tailor made for absorbing such ad-hoc teachers under a newly constituted cadre. Significantly, as projected by learned counsel for the respondents, a Prabodhak has limited promotional avenues and can be promoted only to the post of Senior Prabodhak but not thereafter. As against this, a teacher grade-III has atleast two promotional avenues to the post of teacher grade-II and thereafter to teacher grade-I. We are informed that the pay scales of teacher grade-III are identical to those of Prabodhak and teacher grade-II are same as Senior Prabodhak whereas the pay scale of teacher grade-I is considerably higher. 13. Under the circumstances, we do not think that the petitioners have made out any case of pay parity. 13. Under the circumstances, we do not think that the petitioners have made out any case of pay parity. There is nothing under the Rules to suggest that the petitioners, even after they were regularly recruited as teacher grade-III, were disqualified from applying for the post of Prabodhak. If the petitioners thought that with the insertion of Rule 37A in the Rules of 2008, the pay scale of Prabodhaks was far more attractive than that which was offered to them as teacher grade-III, nothing stopped the petitioners from applying for recruitment to the post of Prabodhak and getting absorbed in the said cadre. Obviously, the petitioners would not want to forgo the promotional avenues of teacher grade-II and thereafter teacher grade-I by opting to become Prabodhak. 14. In the result, the petition is dismissed.