1. Heard Mr. R.L. Khapre, the learned senior counsel with Mr. R.G. Kavimandan, Mr. F.T. Mirza, Mr. T.S. Deshpande and Mr. R.M. Ahirrao, for petitioners and Mr. N.S. Rao, the learned AGP for respondents in WP 366/2002 & 3229/2011 & for respondents 2 to 4 in WP 496/2012 and Mr. Anand Parchure and Mr. S.B. Ahirkar, the learned counsel for respondents 5 and 6, respectively, in WP 496/2012.
2. The seminal issue involved in these petitions is whether the Minimum Competency Vocational Course (“MCVC”) Instructors are justified in claiming Pay Scale at par with the Full Time Teachers in MCVC on the principle of “Equal Pay For Equal Work”, which is enshrined in Articles 14 and 39(d) of the Constitution of India. The petitions involve similar factual and legal issues, and are, therefore disposed of by this common judgment.
3. In the context of the issue which falls for determination, Writ Petition 366/2002, which is argued by the learned senior counsel Mr. R.L. Khapre, is treated as the lead petition and it would be apposite to cull out the basic facts from the said petition, to the extent necessary to determine the issue involved.
4. Petitioners 1 and 2 in Writ Petition 366/2002, are employed as Full Time Instructors at Appaswami Junior College, Shendurjana and Laxmichand Junior College, Selu Bazar, respectively. Petitioner 1 holds the qualification Diploma in Industrial Electronics and petitioner 2 holds the qualification Diploma in Electronics and Telecommunication Engineering.
5. It would be of some relevance to note the advertisement in response to which petitioner 1 applied for the post of Full Time Instructor in the MCVC. The advertisement specifically invites applications for two distinct posts, to wit, Full Time Teacher and Full Time Instructor. The essential eligibility qualification for the two posts advertised are manifestly different. The qualification prescribed for the post of Full Time Teacher is degree with one year experience or diploma with three years experience, whereas, the qualification prescribed for the post of Full Time Instructor is degree (experience is not necessary) or diploma with experience of one year.
6. The petitioners contend that though designated as Instructors, the nature of duties discharged is identical with the duties discharged by Full Time Teachers. Extending the contention further, the petitioners submit that there is a marked difference in the Pay Scales. The Pay Scales revised pursuant to the acceptance of the recommendations of the 4th Pay Commission, were Rs. 1400-2600 and Rs. 2000-3500 for the posts of Full Time Instructor and Full Time Teacher, respectively, which were further revised to Rs.5000-8000 and Rs. 6500-10500, respectively, pursuant to the acceptance of the recommendations of the 5th Pay Commission.
7. The petitioners contend that the Principal of Amolchand Mahavidyalay, Yavatmal addressed communication dated 15.2.2000 to the Director and Deputy Director, Vocational Education and Training seeking guidance on the assignment of work to Full Time Instructors and Full Time Teachers on the premise that the institution is oblivious of the duty lists. The petitioners further submit that the staffing pattern which is prescribed for the MCVC includes Full Time Teachers and Full Time Instructors in the category of Teaching Staff.
8. The petitioners seek to buttress the submission that Full Time Instructor is in essence discharging the duties of Full Time Teacher by referring to the staffing pattern prescribed for institutions with Commerce Course imparting training only to the students of the 11th standards, which envisages appointment of only one staff member, either as Full Time Teacher or Full Time Instructor.
9. The petitioners after referring to the curriculum of the MCVC, which includes theory and practical, submit that a Full Time Instructor is required to conduct the practicals and to teach the students the theory related to the practicals. According to the petitioners, a Full Time Teacher too, in the initial years, is required to teach theory and practical and that instances of similarly qualified persons appointed as Full Time Teachers and Full Time Instructors are common. A reference is made to the quarterly report required to be submitted by the Management to highlight that Full Time Instructors are referred to as teachers.
10. Adverting to certain developments which occurred during the pendency of the petitions, the petitioners submit that the association of Full Time Instructors approached the Government of Maharashtra demanding treatment at par with Full Time Teachers, in response to which demand, the Government of Maharashtra directed the Director of Technical Education to submit his views on ten relevant issues including the contentious issue whether Full Time Instructors can be treated at par with Full Time Teachers. The petitioners submit that the Director of Technical Education conveyed to the Government of Maharashtra that it would be in the interest of the quality of training if such parity is accorded.
11. The petitioners then refer to the Government Resolution dated 5.7.2011 issued in respect of granting approval to additional new sections on no grant basis for the HSC Vocational Course for the year 2011-12 which inter alia provides that the institution shall comply with the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (“Rules”) and the Government directives issued from time to time, while appointing the employees. Relying on the definition of “teacher” in the Rules, the petitioners contend that a Full Time Instructor is covered within the said definition.
12. A laborious attempt is made, by referring to the nature of duties and the workload, inter alia making an illustrative reference to the work assignments or the “TimeTable” in vogue in some institutions, to demonstrate that Full Time Instructors do work, equal to, if not more than, Full Time Teachers.
13. The petitioners emphasize that the Government of Maharashtra issued Resolution dated 28.10.1988 professing to implement the MCVC scheme on the lines of the MCVC of the Central Government. The petitioners then refer to the staffing pattern prescribed by the P.S.S. Central Institute of Vocational Education (PSSSCIVE) which provides for two posts of vocational teachers and makes no reference to the post of Full Time Instructor. The petitioners then refer to the provisions of the Maharashtra Universities Act, 1994 and the definition of “Teacher” to emphasize that the said statute includes Instructor of Physical Education (PTI) in the definition of teacher. The petitioners then refer to the Government Resolution dated 13.2.2004 which includes the posts of Lecturer, Librarian and Instructor of Physical Education of senior colleges in the teaching category.
14. The petitioners then refer to the duties extracted by the Maharashtra State Board of Secondary and Higher Secondary Education, Amravati Division, Amravati from Instructors and Teachers, as internal or external examiner for practical examinations and the common training programme conducted by the Deputy Director of Vocational Education and Training, for Full Time Teachers and Full Time Instructors.
15. The thrust of the contentions is to emphasize on the anvil of quantum and nature of duties, that the differentiation in the Pay Scales is invidious and falls foul of the constitutional guarantee of “Equal Pay For Equal Work”.
16. The respondents contend in rebuttal, that the principle of “Equal Pay For Equal Work” does not come into play since neither the qualifications prescribed nor the nature of duties discharged, are similar, much less identical, as would justify according parity in Pay Scales to Full Time Instructors. The respondents assert that the difference in salary is neither arbitrary nor otherwise violative of any constitutional principle and the difference is justified in view of the qualifications prescribed and the nature of duties which are required to be performed.
17. The respondents submit that the Government of Maharashtra, on revisiting the issue, decided that the educational qualifications, experience prescribed, the nature of work and the recruitment rules being different, Full Time Instructors cannot be treated at par with Full time Teachers. A reference is made to the communication dated 12.6.2012 addressed by the Director of Technical Education to the Principal Secretary which recommends that Full Time Instructors and Full Time Teachers cannot be equated. The respondents would submit that the Government Resolution dated 5.7.2011 is restricted to non-aided institutions, that the said decision cannot be given retrospective effect, and in any event, the said decision cannot be construed as conferring parity in Pay Scales. Referring to the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (“MEPS Act) and Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the respondents would emphasize that the qualifications of Full Time Teacher are higher than that prescribed for the post of Full Time Instructor.
18. Adverting to the nature of duties performed, the respondents submit that the primary duty of Full Time Instructors is to demonstrate practicals to students and to supervise the performance of the students, which duty cannot be equated with teaching. Responding to the submission of the petitioner, that a Full Time Instructor puts in longer hours of work, respondents submit that while practical naturally requires some time, a Full Time Instructor is not fully engaged for the entire duration of the practical and that for calculating the Course Credits two hours of practical are treated equivalent to one hour of theory. Respondents further submit that Full Time Teacher is engaged in delivering the lecture for the entire period and in explaining each and every minute detail and then in clarifying the doubts of the students.
19. The respondents would submit that the responsibility of a Full Time Teacher is to impart theoretical knowledge in the realm of cognitive domain whereas the role of Full Time Instructor is in the realm of psycho-motor domain, and the two posts are not comparable.
20. On the premise that certain factual disputes may have to be addressed, vide order dated 8.12.2014 rendered in Writ Petition 496/2012, the learned Member, Industrial Court, Akola was appointed as Court Commissioner to record the oral and documentary evidence of the contesting parties. The learned Court Commissioner permitted the contesting parties to amend the pleadings and to adduce oral and documentary evidence and, on the basis of evidence, submitted report dated 19.5.2016 recording a finding of fact that the petitioners were unable to demonstrate that the work performed by them is similar to that performed by a Full Time Teacher. The learned Court Commissioner has found that, au contraire, the evidence on record disclosed that the work, duties and responsibilities assigned to Full Time Instructor and the Full Time Teacher are different. The relevant observations of the learned Court Commissioner, which follow detailed and flawless appreciation of material on record, read thus:
“17. Thus, the evidence produced on record disclosed that for M.C.V.C. Courses, two different posts i.e. full time Teacher and full time Instructors are introduced. The evidence as produced on record also disclosed that the educational qualification and experience as required for the appointment on the post of full time Teachers and full time Instructors are different. The evidence as come on record also disclosed that the duties and responsibilities as assigned to the full time Teachers and full time Instructors are different. The evidence as come on record disclosed that the petitioner No.1 has applied for the appointment on the post of full time Instructor since he was possessing the required qualification as per the advertisement and accordingly, appointed and working on the post of full time Instructor
The evidence produced by the petitioners and as discussed no where suggest that the petitioners are performing the same work as that of Teacher and that the work done by the Teachers and Instructors is one and identical as claimed. On the other hand, the evidence as produced on record disclosed about the specific work, duties and responsibilities as assigned to the petitioners, the full time Instructors and thus, different than the full time Teachers”
21. The report of the learned Court Commissioner is assailed by the petitioners inter alia on the ground that the learned Court Commissioner failed to appreciate the import and implication of several facts and circumstances which are borne on record.
22. The thrust of the submissions of the learned senior counsel Mr. R.L. Khapre, and which line of submissions is towed by the learned counsel appearing for the petitioners in connected petitions, is that the petitioners and Full Time Teachers perform similar work and denial of parity in Pay Scale is invidious since the distinction is clearly artificial and not rationale. Mr. R.L. Khapre would rely on the decision of the Hon’ble Supreme Court in State of Punjab & Others .vs. Senior Vocational Staff Masters Association and Others [(2017) SCC 379] (State of Punjab & Others) to buttress the said submission. In rebuttal, the learned AGP Mr. N.S.Rao relying on a plethora of decisions, submits that the principle of “Equal Pay For Equal Work” is inapplicable, firstly as the qualifications for the two posts are different and secondly, as is found by the learned Court Commissioner, the nature of duties performed is not similar
23. Before we consider the rival submissions, the articulation of the Hon’ble Supreme Court on the doctrine of “Equal Pay For Equal Work”, may be noted, if only to test the claim to parity on the anvil thereof.
24. In SAIL v. Dibyendu Bhattacharya, [(2011) 11 SCC 122] [LQ/SC/2010/1201] , the Hon’ble Supreme Court held that the burden to prove and establish discrimination is on the employee seeking parity of pay and that the equality clause can be invoked in the matter of Pay Scales only when there is “wholesome/wholesale identity between the holders of two posts”. The relevant observations in SAIL v. Dibyendu Bhattacharya, read thus:
“22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine of `equal pay for equal work' as enshrined under Article 39(d)of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The Court must consider the factors like the source and mode of recruitment/appointment, the 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 wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on person claiming such right. ( Vide U.P. State Sugar Corporation Ltd. v. Sant Raj Singh [(AIR 2006)9 SCC 82 : 2006 SCC (L&S) 1610 : AIR 2006 SC 2296 [LQ/SC/2006/485] ], Union of India v. Mahajabeen Akhtar, [(2008) SCC 368 : (2008)1 SCC (L&S) 183: AIR 2008 SC 435 [LQ/SC/2007/1335] ], Union of India v. Dineshan K.K., [(2008)1 SCC 586 [LQ/SC/2005/1254] : (2008) 1 SCC (L&S) 248. AIR 2008 SC 1026 [LQ/SC/2008/15] ], Union of India v. Hiranmoy Sen [(2008) 1 SCC 630 [LQ/SC/2007/1265] : (2006 1 SCC (L&S)], Official Liquidator v. Dayanand [(2006) 10 SCC 1 [LQ/SC/2006/1051] : (2009) 1 SCC (L&S) 943}, U.P. SEB v. Aziz Ahmad [(200() 2 SCC 606 [LQ/SC/2009/115] : (2009) 1 SCC ( L& S) 418] and State of M.P. v. Ramesh Chandra Bajpai [(2009) 13 SCC 635 [LQ/SC/2009/1545 ;] ">[(2009) 13 SCC 635 [LQ/SC/2009/1545 ;] [LQ/SC/2009/1545 ;] ">[(2009) 13 SCC 635 [LQ/SC/2009/1545 ;] ">[(2009) 13 SCC 635 [LQ/SC/2009/1545 ;] [LQ/SC/2009/1545 ;] [LQ/SC/2009/1545 ;] : (2010) 1 SCC (L & S) 287])."
25. In State of Haryana v. Jasmer Singh, [(1996) 11 SCC 77, [LQ/SC/1996/1921] the Hon’ble Supreme Court observes that even if the designation of the job is the same, there may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job and that the evaluation of such jobs for the purposes of Pay Scale must be left to expert bodies and, in the absence malafides, the evaluation should be accepted. In State of Haryana vs. Charanjit Singh, [(2006)9 SCC 321 [LQ/SC/2021/2761 ;] ">9 SCC 321 [LQ/SC/2021/2761 ;] [LQ/SC/2021/2761 ;] ">9 SCC 321 [LQ/SC/2021/2761 ;] ">9 SCC 321 [LQ/SC/2021/2761 ;] [LQ/SC/2021/2761 ;] [LQ/SC/2021/2761 ;] , the Hon’ble Supreme Court emphasizes that the doctrine of “Equal Pay For Equal Work” has no mechanical application and that the doctrine may not have application if the educational qualifications are different. A classification based on difference in educational qualifications justifies a difference in Pay Scales. It would be apposite to note the following observations in State of Haryana vs. Charanjit Singh:
“19……... Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition…...”
26. In Mewa Ram Kanojia vs. A.I.I.M.S., [(1989)2 SCC 235 [LQ/SC/1991/448] , the enunciation is that the doctrine of “Equal Pay For Equal Work” is not abstract and it is open to the State to prescribe different Scales of Pay for different posts having regard to educational qualifications, duties and responsibilities of the post. The relevant discussion in the said decision read thus:
“8. There are several decisions of this Court where educational qualifications have been recognised as a valid basis for classification. In State of Mysore v. Narasingh Rao, [1968] 1 SCR 407 [LQ/SC/1967/253] this Court held that higher educational qualifications such as success in S.S.L.C. examination are relevant considerations for fixation of higher pay scale for tracers who had passed the S.S.L.C. examination and the classification of two grades of tracers in Mysore State, one for matriculate tracers with higher pay scale and the other for non-matriculate tracers with lower pay scale, was held valid. It is pertinent to note that matriculate and nonmatriculate tracers both constituted the same service performing the same duties and functions, yet the Court held that higher pay scale prescribed for the matriculate tracers on the basis of higher educational qualification was not violative of Articles 14 and 16 of the Constitution. In Union of India v. Dr. (Mrs.) S.B. Kohli, [1973] 3 SCC 592 [LQ/SC/1972/597] classification made on the basis of educational qualification for purposes of promotion was upheld by this Court on the ground that the classification made on the basis of such a requirement was not without reference to the objectives sought to be achieved and there could be no question of discrimination. In State of Jammu & Kashmir v. Triloki Nath Khose [1974] 1 SCC 19 [LQ/SC/1973/292] cadre of Assistant Engineers included of Degree holders and Diploma-holders, they constituted one class of service but for promotion to the post of Executive Engineers only those Assistant Engineers were eligible for promotion who possessed Bachelor's Degree in Engineering and the Diploma-holders were eligible only if they had put in 7 years minimum service no such restriction was prescribed for Degree-holders. The Diploma-holder Assistant Engineers challenged the validity of the rule on the ground that it denied them equal opportunity of promotion, in violation of Articles 14 and 16 of the Constitution. On a detailed consideration a Constitution Bench of this Court upheld the classification on the ground of difference in educational qualification. The Court held that classification rounded on the basis of educational qualification had a reasonable nexus to achieve administrative efficiency in Engineering Services. The Court approvingly referred to the decisions of the Court in State of Mysore v. Narasing Rao, [1968] 1 SCR 407 [LQ/SC/1967/253] ; Ganga Ram v. Union of India, [1970] 3 SCR 481 [LQ/SC/1970/21] and Union of India v. Dr. (Mrs.) S.B. Kohli, [1973] 3 SCC 592 [LQ/SC/1972/597] . The Court upheld the classification and refused to grant any relief to Diploma-holder Engineers. In Mohammad Shujat Ali v. Union of India, [1975] 1 SCR 449 [LQ/SC/1974/187] another Constitution Bench of this Court upheld the classification of Supervisors into two classes, graduates and non-graduates for the purpose of promotion to the post of Assistant Engineers on the ground of educational qualification although both the class of supervisors constituted the same service. In Federation of All India Customs & Central Excise Stenographers (Recognised) v. Union of India, [1988] 3 SCC 91 [LQ/SC/1988/285] claim of Personal Assistants and Stenographers attached to the Head of Departments in the Customs and Central Excise Department of the Ministry of Finance for equal pay in parity with the Personal Assistants and Stenographers attached to the Joint Secretaries and Officers above them in the Ministry of Finance was rejected by this Court on the ground of the functional requirement of the work done, training, and responsibility prescribed for the two posts. In State of U.P. v. Sh. J.P. Chaurasia & Ors., [1989] 1 SCC 121 [LQ/SC/1988/516] the question arose whether it was permissible to have two different pay scales in the cadre of Bench Secretaries, for persons performing the same duties and having the same responsibilities. In the light of the various decisions of this Court it was held that the principle of "equal pay for equal work", has no mechanical application in every case of similar work. Articles 14 and 16 permit reasonable classification rounded on rational basis, it is, therefore, permissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. The Court held that in such a situation the principle of equal pay for equal work did not apply”.
27. In a relatively recent decision in Delhi Transport corporation Security Staff Union (Regd.) vs. Delhi Transport Corporation and Another, [(2018)16 SCC 619] [LQ/SC/2015/1281] , the Hon’ble Supreme Court emphasized that grant of Pay Scale is a highly technical and complex matter, which requires consideration of a host of factors, such as the qualifications, the method of recruitment and the nature of duties and therefore, the Courts are loathe to interfere in matters with regard to grant of Pay Scale. In addition to Delhi Transport corporation Security Staff Union (Regd.) vs. Delhi Transport Corporation and Another, the learned AGP Mr. N.S. Rao has invited our attention to several other authoritative pronouncements of the Hon’ble Supreme Court, including State of UP and Others vs. J.P. Chaurasia and Others, AIR 1989 SC 19 [LQ/SC/1988/516] ; Harbans Lal and Ors..vs.. State of Himachal Pradesh and Ors, [(1989)4 SCC 459 [LQ/SC/1991/251] ; Chandigarh Administration vs. Anita Sood (Smt.) and Ors, 1995 Supp(3) SCC 613 and V. Markendeya and Ors. vs. State of A.P. and Ors, AIR 1989 SC 1308 [LQ/SC/1989/219] . We need not burden the judgment by making an elaborative reference to the articulation in the said decisions, since the position of law governing matters of parity in Pay Scale is only reiterated and reemphasized.
28. The consistent judicial view is that the doctrine of “Equal Pay For Equal Work” is not abstract and does not operate in a vacuum. The principle “Equal Pay For Equal Work” is not a fundamental right but a constitutional goal and entitlement to parity in Pay Scale would depend on several factors such as educational qualifications, nature of the job, duties to be performed, responsibilities to be discharged and experience. The designation of posts cannot be the sole basis of comparison. Considering that evaluation of posts is a complex exercise which must consider several factors, unless the decision of the executive is demonstrably malafide or irrational, the Courts must observe restrain and avoid treading on unsure grounds. The burden to prove and establish entitlement to parity on the touchstone of Articles 14 and 39(d) of the Constitution of India is that all the employee claiming such parity and unless, a wholesale identity between the holders of the two posts is established, interference in the evaluation done by the executive would be inappropriate.
29. The decision in State of Punjab & Others, which the learned senior counsel Mr. R.L. Khapre presses in service, is rendered in the factual matrix and is clearly of no avail to the cause of the petitioners. In State of Punjab & Others the degree holders and diploma holders were initially appointed as Vocational Masters by common process of selection pursuant to common advertisement and performed same work and discharged similar responsibilities and most importantly were assigned the same Pay Scale. It is in this factual backdrop that the Hon’ble Supreme Court held that assigning lower Pay Scale to diploma holders by creating two categories of Vocational Teachers constitutes invidious discrimination. The Hon’ble Supreme Court noted that there was no rationale behind making classification between degree holders and diploma holders when both the categories were treated as one in all previous Pay Revisions since 1978 and the Notification dated 16.7.2003 which categorized the two posts differently is arbitrary. The decision is rendered in the glaring facts of the case.
30. We have given due consideration to the evidence recorded by the learned Court Commissioner, the findings rendered and the objections raised by the petitioners, and having done so, we have no hesitation in holding that there is no infirmity in the findings of fact recorded by the learned Court Commissioner.
31. We note from record that Mr. Sanjay Pannase, who is petitioner 1 in Writ Petition 496/2012 was the only witness examined on behalf of the Full Time Instructors, while on behalf of the Government of Maharashtra, Mr. Satish Suryavanshi, the then Joint Director, Vocational Education and Training, Regional Office, Nagpur stepped into the witness box.
32. It would be apposite to note the relevant portion from the deposition of Mr. Sanjay Pannase, which is culled out by the learned Court Commissioner, thus:
“13. The petitioners have claimed that though they petitioners are designated as Instructors, they performed same work as compared to Teacher, Teaching theory subject. The petitioners have claimed that the respondents have separated two posts namely full time Teacher and full time Instructor, however they do not have to perform different duties or job entrusted to them. In this regard, the petitioner No. 1 in his evidence has admitted the fact that full time Teachers are Teaching the students in the Class Room, their Teaching hours are fixed, admitted the fact that the full time Instructors are doing their duties in the Laboratory or in the Workshop. The petitioner No. 1 has admitted that fact that in the Laboratory and Workshop the demonstrations are given to the students, as per the demonstrations given by the Instructors, the students are carrying their practicals. The petitioner No. 1 has further admitted the fact that they Instructors are Teaching the practicals to the students by way of demonstrations. The petitioner No. 1 has admitted the fact that they Instructors are verifying the practicals as done and carried by the students. The petitioner No. 1 has admitted the fact that the students are appearing for the examinations, the answer papers of the students are assess by the Teachers and further deposed that Teachers and the Instructors assess the answer-sheet of the students. The petitioner No. 1 has admitted the fact that full time Teachers are not assessing the final practical examinations and they Instructors are assessing final practical examinations of the students, they Instructors are not assessing the theory examination answer papers. The petitioner No. 1 has admitted the fact that they Instructors are maintaining the registers in respect of the general performance of the students in the practicals”.
33. In the light of the oral and documentary material on record, the only and irresistible conclusion which could have been arrived at, is that the nature of duties performed and the responsibilities discharged by Full Time Instructors are not comparable with those performed and discharged by Full Time Teachers. We, therefore, entirely agree with the findings of fact recorded by the learned Court Commissioner.
34. Adverting to the objections raised to the findings recorded by the learned Court Commissioner, we note that the applicability of the MEPS Act and the Rules framed thereunder to Full Time Instructors is now questioned. Perusal of the record reveals that the learned Court Commissioner proceeded on the premise that the contesting parties did not dispute that the provisions of the said Enactment and the Rules are made applicable to Full Time Teachers and Full Time Instructors in MCVC. Perusal of Schedule-B to the MEPS Act and Rules would reveal that the qualifications prescribed for the Full Time Teachers and Full Time Instructors in Vocational subjects or courses is manifestly different. The pleadings in the three petitions would suggest that Full Time Instructors not only assumed the MEPS Act and the Rules to be applicable, in certain measure, the provisions thereof are invoked to substantiate the claim to parity.
Arguendo, even if it is assumed that the provisions of the MEPS Act and the Rules are not applicable, as is now asserted by the Full Time Instructors, we find no substance in the submission that in the absence of Rules framed under Article 309 of the Constitution of India, it would have to be assumed that there are no minimum illegibility qualifications prescribed. It is eminently permissible in exercise of executive power to prescribe educational qualifications for a post, if the space is unoccupied by statutory provisions. Conjoint reading of Government Resolution dated 9.8.1978 and the Government Circular dated 28.10.1988, and from which the Full Time Instructors draw support, and to which a copious reference is made in the petitions, reveals that the qualifications, and which are different for the posts of Full Time Teachers and Full Time Instructors, are prescribed in exercise of executive power.
35. We are of the considered view that the decision of the State Government not to grant to Full Time Instructors parity in Pay Scale with the Full Time Teachers does not suffer from the vice of arbitrariness or irrationality, and we would be loathe to interfere with a legitimate exercise of executive power, in exercise of writ jurisdiction.
36 We find that other than relief of parity in pay scale, certain directions are sought touching the procedure and policy of inspection and working hours. While the said reliefs are not seriously pressed, in the absence of material to show that the policy decisions demonstrably suffer from irrationality or malafides, we are even otherwise not inclined to consider the said prayers.
37. In the light of the discussion supra, the petitions deserve to be dismissed and are accordingly dismissed with no order as to cost.
