Ashwani Kumar Mishra,J.

1. Challenge in this writ petition is laid to an order passed by the department of Jail Administration, dated 27th May, 2014 (contained in Annexure 12 to the writ petition); whereby petitioners claim for higher wages admissible to Instructors is declined and the classification based on qualification for prescribing different scale of pay is upheld.

2. Petitioners were appointed as Instructors to teach various vocational subjects to Prisoners in the Jail and are working since long. Petitioner No. 1 was appointed as Instructor in 1997; Petitioner No. 2 was appointed to the same post in 1992; Petitioner No. 3 was appointed in 1995; Petitioner No. 4 was appointed in 1987 and Petitioner No. 5 was appointed in 1982, respectively. There services were earlier governed by the provisions of the U.P. Jail Ministerial and Commercial Service Rules, 1983. Eligibility for appointment to the post of Instructor has been specified in Part IV of the Rules of 1983. For Instructors in different trades, the qualification prescribed was Diploma and Practical Knowledge of three years. Reference can be had to the qualification of Tailor Master, which reads as under:-

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3. Similar qualifications have been specified for other trades also. All the petitioners possess requisite qualification as per the requirement contained in the Rules of 1983. They were also paid salary as per the scale of pay prescribed for them.

4. In the year 2011, the Rules of 1983 stood substituted by a new set of Rules known as ‘Uttar Pradesh Karagar Prashasan Evam Sudhar Vibhag Pravidhik (Samuh "Ga") Seva Niyamavali, 2011’. The educational qualification for appointment under the new rules is distinct from what was specified earlier. In the service rules different scale of pay has been prescribed for same post, depending upon the qualification possessed by the Instructor. Lower scale of pay i.e. 3050-4590 with Grade Pay of Rs. 1900 is prescribed for Instructors possessing qualification of High School or one year diploma; whereas in respect of candidates possessed two years diploma with High School, the scale of pay is Rs. 4000-6000 with corresponding Grade Pay of Rs. 4200. In cases where the qualification possessed by Instructor is Three Year Diploma, the pay scale prescribed is Rs. 5000-8000 with corresponding Grade Pay of Rs. 4200. No such distinction existed in the earlier Rules of 1983. Petitioners, therefore, approached this Court with the grievance that their scale of pay ought to be at par with other Instructors notwithstanding difference in their educational qualification. Grievance in that regard was raised before this Court in writ petition no. 53679 of 2012, which came to be disposed of directing the Secretary of the Department concerned to examine such claim. Order passed by this Court on 19.10.2012 in the aforesaid writ petition is reproduced hereinafter:-

“Heard learned counsel for the petitioners.

The petitioners claim that they are working as Instructor in different Central Jails situate within the State of U.P.

It is contended that after enforcement of U.P. Karagar Prashasan Evam Sudhar Vibhag Pravidhik (Samuh 'G') Seva Niyamavali, 2011 (for short Rules 2011), two different pay scales have been prescribed for the post of Instructors and persons lesser qualified and junior to the petitioners have been placed in the higher pay scale, but the petitioners are placed in the lower pay scale for no rhyme or reason.

From a perusal of pleadings, it appears that petitioners have made representation with respect to their grievances and anomaly in accordance with Rule 2011.

Considering the facts, writ petition stands disposed of with the liberty to the petitioners to make a fresh individual representation with respect to their grievances before respondent no. 1, Secretary Jail, Government of U.P., Lucknow along with a certified copy of this order within a period of three weeks from today and, in case, any such representation is made, the concerned authority shall decide the same by means of a reasoned and speaking order in accordance with law within a further period of two months from the date of making of the representation.”

5. Contempt petition was also filed and ultimately by the order impugned dated 27th May, 2014 claim of the petitioners for scale of pay at par with other Instructors who possessed three years diploma is rejected by the State Government. Order impugned records that distinction in the scale of pay based upon the qualification of Instructor is a valid classification and, therefore, petitioners are not entitled to parity with the Instructors who have higher qualification.

6. Learned counsel for the petitioners submits that denial of pay scale admissible to an Instructor of Rs. 5000-8000 with corresponding Grade Pay of Rs. 4200 to the petitioners in the facts and circumstances is arbitrary.

7. It is also urged that denial of equal wages in the facts of the present case would amount to violating the principles of equal pay for equal work as all the petitioners are performing duties similar to what is being performed by the Instructors possessing diploma of three years. It is also stated that the amended rules can only apply prospectively and the employees engaged previously cannot be discriminated in the matter of fixation of pay scale as it would amount to retrospectively implementing the rules of 2011 for which there exists no stipulation in the rules itself.

8. A counter affidavit has been filed justifying the rejection of petitioners claim on the ground that classification based on higher qualification for higher salary in the same cadre and class of employment would be permissible.

9. The question that falls for determination in this petition, therefore, is as to whether the State would be justified in fixing higher scale of pay for same category of employees, performing similar work, merely on the strength of their higher qualification

10. Controversy raised in the present writ petition is no longer res-integra, inasmuch as, in a series of judgments the Supreme Court has upheld the classification based on qualification for the purposes of fixation of salary to the employees performing similar work. In U.P. State Sugar Corporation Ltd. and another Vs. Sant Raj Singh and others, (2006) 9 SCC 82, [LQ/SC/2006/485] the Supreme Court was confronted with the similar issue and the doctrine of ‘equal pay-for equal work’ came to be examined where difference in salary was justified on the basis of higher qualification of the employee performing same work. In paragraphs 16 to 22, the issue has been examined threadbare by the Supreme Court in following words:-

“16. The doctrine of equal pay for equal work, as adumbrated under Article 39(d) of the Constitution of India 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. Possession of a higher qualification has all along been treated by this Court to be a valid basis for classification of two categories of employees.

17. In State of J&K v. Triloki Nath Khosa [(1974) 1 SCC 19 [LQ/SC/1973/292] : 1974 SCC (L&S) 49] the validity of such a classification came to be considered before this Court. Chandrachud, J. (as the learned Chief Justice then was), opined: (SCC p. 30, para 19).

“Formal education may not always produce excellence but a classification founded on variant educational qualifications is, for purposes of promotion to the post of an Executive Engineer, to say the least, not unjust on the face of it and the onus therefore cannot shift from where it originally lay.”

18. Krishna Iyer, J. supplemented, stating: (SCC pp. 40-41, para 54).

“The social meaning of Articles 14 to 16 is neither dull uniformity nor specious ‘talentism’. It is a process of producing quality out of larger areas of equality extending better facilities to the latent capabilities of the lowly. It is not a methodology of substitution of pervasive and slovenly mediocrity for activist and intelligent—but not snobbish and uncommitted—cadres. However, if the State uses classification casuistically for salvaging status and elitism, the point of no return is reached for Articles 14 to 16 and the Court's jurisdiction awakens to deaden such manoeuvres. The soul of Article 16 is the promotion of the common man's capabilities, overpowering environmental adversities and opening up full opportunities to develop in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule, wriggling out of the democratic imperative of Articles 14 and 16 by the theory of classified equality which at its worst degenerates into class domination.”

19. In State of M.P. v. Pramod Bhartiya [(1993) 1 SCC 539 [LQ/SC/1992/696] : 1993 SCC (L&S) 221 : (1993) 23 ATC 657] referring to the provisions of Section 2(h) of the Equal Remuneration Act, 1976 this Court stated: (SCC p. 547, para 13).

“13. It would be evident from this definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, as pointed out by Mukharji, J. (as he then was), in Federation of All India Customs and Excise Stenographers [Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91 [LQ/SC/1988/285] : 1988 SCC (L&S) 673 : (1988) 7 ATC 591] the quality of work may vary from post to post. It may vary from institution to institution. We cannot ignore or overlook this reality. It is not a matter of assumption but one of proof. The respondents (original petitioners) have failed to establish that their duties, responsibilities and functions are similar to those of the non-technical lecturers in technical colleges. They have also failed to establish that the distinction between their scale of pay and that of non-technical lecturers working in technical schools is either irrational and that it has no basis, or that it is vitiated by mala fides, either in law or in fact (see the approach adopted in Federation case [Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91 [LQ/SC/1988/285] : 1988 SCC (L&S) 673 : (1988) 7 ATC 591] ).”

20. Yet again in Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 [LQ/SC/1994/186] : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] a three-Judge Bench of this Court opined: (SCC p. 525, para 9).

“The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ‘equal pay for equal work’ should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of equal pay for equal work’ to them.”

21. In Govt. of W.B. v. Tarun K. Roy [(2004) 1 SCC 347 [LQ/SC/2003/1176] : 2004 SCC (L&S) 225] it was clearly laid down that the holders of a higher qualification can be treated to be a separate class, holding: (SCC p. 356, para 20).

“20. Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equality clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia.”

The said decision has been noticed by another Bench of this Court in M.P. Rural Agriculture Extension Officers Assn. v. State of M.P. [(2004) 4 SCC 646 [LQ/SC/2004/474 ;] ">[(2004) 4 SCC 646 [LQ/SC/2004/474 ;] [LQ/SC/2004/474 ;] : 2004 SCC (L&S) 667] stating: (SCC p. 656, para 22).

“22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P. Narasing Rao [State of Mysore v. P. Narasing Rao, (1968) 1 SCR 407 [LQ/SC/1967/253] : AIR 1968 SC 349 [LQ/SC/1967/253] ] .”

22. The first respondent admittedly did not possess the requisite qualification. He merely claimed a higher scale of pay only because Shri B.P. Srivastava and Shri Shyam Sunder Shukla had been paid. It has not been disputed before us that the case of Shri Srivastava stood on a different footing and his scale of pay had to be protected in terms of Section 16 of the. So far as Shri Shyam Sunder Shukla is concerned, we may proceed on the basis that the Corporation took a wrong decision. The said decision, however, was not questioned by the first respondent before the High Court. No foundational facts had been placed before the High Court in relation thereto. We would not like to enter into the controversy as to whether his case could have been considered by the Committee or on what basis the Committee considered the cases of seven candidates and granted higher scales of pay to four candidates as the validity thereof is not in question. Assuming that the Corporation was wrong, the same by itself would not clothe the first respondent even (sic with a) legal right to claim a higher scale of pay. On what basis the Selection Committee selected four employees out of the seven is not known. Three persons admittedly were not selected. If the plea put forward by the respondent is accepted, these employees also would be entitled to the same scale of pay as given to the said Shri Shukla, although they have been found to be not fit therefor. Educational qualification was made the basis for a valid classification in the matter of payment of salary in a particular scale of pay by the Wage Board itself. Only in the year 1989, such a classification was obliterated. The first respondent had been granted the benefit of the recommendations of the Third Wage Board also. It was a matter of policy decision for the Corporation to consider as to whether a particular category of employees should be taken outside the purview of the pay scales recommended by the Wage Board and place them in a higher scale of pay. We, therefore, cannot accept the contention of Shri Dwivedi that only because no such qualification was prescribed at the time of recruitment, the classification made on that basis would be bad in law. Even otherwise the said contention is not correct as the scale of pay was determined by the award of the Wage Board.”

11. In view of what has been observed above, it is abundantly clear that classification based upon higher qualification for allowing higher salary to an employee performing similar work would be permissible. It is otherwise a matter of policy for the State to prescribe as to what would be the scale of pay admissible to an employee based upon his qualification. The Rules of 2011 are otherwise not under challenge. Since the classification based on higher qualification for prescribing different pay scale to employees performing similar work is permissible, the respondents would clearly be justified in denying equal pay to petitioners at par with those Instructors, who possess qualification of three year diploma. The mere fact that such distinction did not exist in the earlier rules of 1983 would also not constitute any valid basis to challenge prescription of different wages for employees performing similar work on account of variation in their qualification. It is otherwise not the case of the petitioners that their salary is reduced consequent upon substitution of earlier rules with the Rules of 2011.

12. For the reasons recorded above, the rejection of petitioners’ claim for parity in pay scale is neither found to be arbitrary nor violative of principles of ‘equal pay-for equal work’ and consequently the challenge laid to the order dated 27th May, 2014 fails. The writ petition, accordingly, is dismissed. No order is passed as to costs.