1. The respondents preferred swp. No.1878/92 on 8.7.1992 requesting the court that in view of doctrine of equal pay for equal work, the shepherds of sheep husbandry department being entitled to get the same salary which is being paid to forest guards of the forest department, the respondents of the petition be directed to pay accordingly.

2. Learned single judge after hearing the matter, directed the present appellants to pay the petitionershepherds pay and grade of forest guards in J & K state with effect from the date the last revision was given effect to. So as to bring the case of shepherds at par with forest guards with regard to parity of pay, so as to fullfill constitutional obligation of equal pay for equal work.

3. So far as parity of equal pay is concerned, learned single judge declined to grant relief with effect from 1.1.1982 on the ground that the same would involve burden on public exchequer and thereby would affect public interest. It is against the said judgement, the original respondents have preferred appeal while original petitioner has filed crossobjections interalia praying that the benefit of the pay and grade equivalent to the pay and grade of forest guards of the forest department be given with effect from 1.1.1982.

Claim made by the petitioner

4. With a view to understand the disputes between the parties, it would be necessary to refer the facts which are disclosed in the petition.

4.1 The petitioner is an association known as shepherds workers association, Kashmir, and the members are shepherds working with sheep husbandry department of Kashmir. The union is registered and the petition was filed through its president.

4.2 It is pointed out in the petition that initially, petitioners were appointed as shepherds in the pay scale of rs.180250(unrevised). For the purpose of claiming the nature of appointment, appointment order with regard to one of the shepherd is produced at annexureb. Forest guards in the forest department of j & k state were also appointed in the grade of rs.180250 in the year 1978. Appointment order made by chief conservator of forests in favour of one of the forest guards dated: 9.12.1978 is also placed on record vide annexurec. It is contended by the original petitioner that by virtue of SRO 149 dated: 7.4.1972, the shepherds and forest guards were placed in the same scale, however, by virtue of SRO 350 dated 21.8.1982 the pay was revised from Rs. 180250 to rs.390500 while that of forest guards was revised from Rs. 180250 to rs.410625. In view of this, it is contended by the shepherds that the forest guards are given preferential treatment without legal justification. In the petition it is averred about the representation, placing on recorded copy of such representation/stating that representation has not been disposed of. It is required to be noted that it was the duty of the petitioner to be specific about the date on which the representation was made and received by the concerned authority and copies of such representations were required to be placed on record. What is required to be noted is that against the revision of pay no action was taken and the same was thus accepted.

4.3 It is clear from record that on 1.4.1987 pay scales were revised and the shepherds pay scale was revised from rs.390500 to Rs.7751025 and that of forest guards from Rs.415625 to Rs.8001400. It is averred in the petition that another representation was forwarded. However, no details are indicated in the petition. The copy is produced on record at annexuree. Likewise earlier pay revision, this time also, except making representation no action was taken in a court of law. If they have accepted even the second pay revision, now grievance made can not be said to be justified.

4.4 In the year 1992, the pay scales were revised and the shepherds were placed in the grade of Rs.7751025 and the forest guards were placed in the grade of rs.9501400. It is also stated that the representation was made vide annexuref without disclosing the date on which the representation was made and received by the concerned respondents.

4.5 It is further contended that the petitioners were working as shepherds and, thus they were looking after the sheeps and goats at the high attitudes, and for the improvements they were and are discharging their duties for 24 hours without any leave or any other benefit which other employees are entitled to. It was further contended in the petition that they were discharging risky and dangerous duties and were working better than the forest guards. It was also contended that the nature of duty is identical to the extent that the shepherds have to take the care of sheeps and goats on the high altitudes and the forest guards have to take care of standing forests. It was contended that the shepherds deserves to be placed superior in status. It was contended that initially the shepherds and forest guards were getting the same grade and nature of duties of the petitioner and that of forest guards being identical and duties discharged by the shepherds being superior, they should have be paid at least equal wages and the discrimination is without any legal justification.

5. Before considering the reply filed, relevant rules framed by the competent authority and the dictionary meaning is required to be considered.

Dictionary meaning of guard and shepherd

6. The dictionary meaning of guard as given in concise oxford dictionary fourth impression 1993 is as under:

6.1 "watch over and defend or protect from harm. Keep watch so as to control entry or exit. Supervise (prisoners etc.) And preventing from escaping. A state of vigilance, a person who protects or keeps watch. A body of soldiers etc. Serving to protect a place or person: an escort."

6.2 Thus forest guard has to look after a large area covered chiefly with trees and undergrowth. The forest guards are required to look after large number of dense mass of the forest with a view to protect the forest. They have to take all possible precaution such as to defend and to protect the forest from any harm. The forest guard has to keep a watch so as to see any unauthorised person is not entering the forest area, to cause damage to the forest by way of cutting trees. They are required to be vigilant and more watchful to protect the forest.

6.3 so far as shepherds are concerned, dictionary referred to hereinabove points out that the shepherd is a person employed to tend sheep especially at pasture, a member of the clergy, who cares for and guides a congregation.

Relevant rules for appointment

7. The learned single judge has tried to compare the rules known as J & K forest service (non gazetted) recruitment rules, 1970 for forest services and J & K sheep husbandry (subordinate service recruitment) rules, 1974 to arrive at a conclusion that method and mode of recruitment, qualification and eligibility for both the services are almost similar. From the rules it is stated by the learned single judge in the judgment that both the categories must be middle pass and physically fit. So far as physical fitness is concerned, there is also provision in J & K civil services (classification, control and appeal) rutes,1956 as applicable to the employees of the state. The learned single judge has observed that both the categories of employee is similarly worded for direct recruitment and promotion. The common category posts carry same grade and were paid till 1992. So far as other the rules are concerned, learned Counsel Mr. Attar has drawn our attention to J & K forest service (nonGazetted) recruitment rules, 1970. So far as the forest guards are concerned, class III of the schedule to the rules is required to be referred. Category a refers to guards (all guards forest, game resin and grazing guards, Jr. Depot assistants, laboratory boys). So far as the qualification is concerned, it has been pointed out that before the amendment he, must have passed the middle examination and so far as physical fitness is concerned, it is stated that his fitness should be as prescribed for forester grade I. So far as forester grade I is concerned, the physical standard is prescribed at (ii) of the schedule. The forest guards must have the following physical standards.

A. Height :54", 163 cms.

B. Physical fitness including 16 miles/25 kms walk to be completed in 4 hours.

C. Physical fitness certificate from civil surgeon.

8. So far as J & K sheep husbandry (subordinate service recruitment) rules 1974 are concerned, the age shall not be less than 18 years and more than 30 years, (relaxation not referred.)

9. So far as forest guards are concerned, rule 8 prescribes the age at the time of recruitment and according to that it should not exceed 28 years. Thus there is a difference in age at the time of recruitment. Schedule a to the sheep husbandry (subordinate service recruitment) rules, 1974 in category b of class iv there is a reference of head shepherds/head gaddies/farm jamadar/ shepherd. So far as qualification is concerned it prescribes middle and which is also relaxable by the appointing authority in case of the candidates hailing from the communities of bakarwals caddies and local chopans. So far as recruitment is concerned 25% of the posts are to be filled in by promotion from category a of class v: i.e skirting boy/laboratory boy, field man/ mali and grazing guard/ menials and 75% are to be taken directly. As against this case of the forest guards, 70% are required to be taken by direct recruitment while 30% posts are required to be filled in by promotion from posts of watchers / orderly/ chowkidar and farash possessing physical standard as prescribed by direct recruitments. Thus in both the categories difference is noticed about the promotional avenues and the direct recruitment and also with regard to the nature of physical fitness.

10. Attention of the court was drawn to J & K civil services (classification, control and appeal) rules, 1956. Chapter III referees to conditions of age and health. According to rule 35 a certificate to the effect that the medical certificatein the prescribed form is to be obtained and is to be furnished alongwith first pay bill. Rule 35 also provides that person shall not be appointed to a post in government service without medical certificate in respect of nongazetted officers unless he furnishes a certificate alongwith first pay bill. Reading the rule it appears that general fitness of a person is required to be considered, such as, vision, deafness, dumbness or orthopedic handicapness. These rules apply to every one. That is to say to the persons belonging to all categories including the categories namely shepherds and forest guards. However, over and above this general conditions of health, the forest guards must possess physical fitness as indicated in the rules. Considering these rules it is difficult to say that the method, mode of recruitment, qualification and eligibility criteria are almost similar. Reading the rules it is clear that there is a difference and it can not be said that the rules are same. For the purpose of promotion, a source is different, age bar is also different, direct quota of recruits is also different. The physical fitness for the post of forest guard as indicated, one can be appointed as a forest guard but having no requisite fitness, he can be appointed as a shepherd, if he is otherwise eligible.

11. So far as educational qualification are concerned, in case of shepherds, the qualification bar of "middle" can be relaxed by the appointing authority but in case of forest guard there is no question of relaxing qualification over and above this, in the year 1987 by SRO 389, the rules known as J & K sheep husbandry (subordinate service recruitment) rules 1987 were brought into force. So far as shepherds are concerned, the qualification of middle was made relaxable and the 50% of the posts were to be filled in from category via with two years experience in that category. In the year 1991 state government introduced the rules known as J & K forest (subordinate service recruitment) rules, 1991. So far as the qualification criteria is concerned, that was changed from middle to matric. So far as fitness is concerned. It is the same as was earlier and the candidate is required to have height of 163 cms and must be able to walk 25 k ms within four hours and if he had no physical fitness to walk the distance, would not be qualified. Over and above this, the general physical fitness certificate was required to be produced from the cmo. So far as the recruitment is concerned, there was change and 50% were to be recruited by direct recruitment, 25% were required to be promoted from class xii, category a with minimum 5 years service in that category (class xii includes mali, cattle pond keeper, paid mazdoor, chainman, water career, road mazdoor, watcher and Gardner). 25% of the posts were to be filled in the promotion amongst class xii of schedule III with minimum five years service in that category. Thus there is material difference in the rules brought into force subsequently also.

12. In the instant case rules are perused and it becomes very clear that there was no change in the qualification but so far as physical fitness is concerned there was much difference. It is in view of the nature of the duties the original respondents have pointed out that there is a difference between the job of the forest guards and the shepherds. The forest guards are forming a separate class and can not be compared with shepherds in any manner.

Denial by respondentsunrebutted

13. The original respondents have denied that the petitioners were required to discharge their duties for 24 hours, but in fact they were required to discharge their duty for 6 hours only. The forest guards were required to perform the duties for 24 hours. These forest guards were required to look after the compartments round the clock. The petitioners were required to work in the farms. Keeping these aspects in mind and the nature of duties to be performed by both which is quite distinct and different, the court has to consider the question.

14. It was for the petitioners to place on record sufficient material to justify their claim that they were working for 24 hours or were discharging duties round the clock and on high altitudes. Respondents have pointed out that they were required to work in the farms and not for 24 hours but only for six hours.

Whether sufficient evidence produced.

15. So far as writ proceedings are concerned, it is the duty of the petitioner to place on record alongwith the petition sufficient evidence to draw an inference that what they have contended in the petition is true and is supported by documentary evidence. Petition is required to be affirmed on oath. The petitioners have to state specifically about the contents which are based on their personal knowledge or based on information which is believed to be true and even in such eventuality the source of information is required to be disclosed. So far as the suit is concerned, it is based on verification and the evidence is not to be produced with the plaint itself. If no adequate material is placed on record with the petition, the contention can not be accepted. The shepherds were working for 6 hours only and that too in a farm. The tall claim made by the petitioners is required to be rejected.

16. Thus when no material is placed, the contention with regard to the nature of the work can not be accepted. With regard to comparison it was for the petitioner to place on record sufficient material to indicate that the work carried out by shepherds is the same which is being discharged by respondents. In the instant case there is sufficient material to indicate that both were working on different duties, were discharging different dutes and nature of work is not similar to each other.

17. In the case of " Bharat Singh vs. State of Haryana" reported as air 1988 sc 2181 , the apex court has pointed out as under :

" in our opinion when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the code of civil procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellant is not entertain able."

18. In case of range forest officers vs. S.T. Hamdani reported (2000) 3 SCC 25, the court has pointed out that filing of an affidavit is only a statement of a person in his favour and can not be regarded as the sufficient evidence by any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary of wages for 240 days or order or record of appointment or engagement for that period was produced by the workman. Thus a claim is made by the petitioner in the petition it is for him to place on record sufficient and acceptable material.

19. Thus when no material is placed, the contention with regard to the nature of the work can not be accepted. In the instant case there is sufficient material to indicate that both were working on different posts, were discharging

The different duties and were not similar to each other.

Duty And Power Under The Forest Act In Relation To Forest Guards

20. Forest guard is a forest officer within the meaning of forest officer as defined in the Jammu and Kashmir forest act, 1987 (hereinafter to be referred to as the act). The forest guard also become public servant within the meaning of Ranbir panel code in view of section 42 of the act. Under section 41 of the act powers may be invested on the forest officers and under section 41 certa in actions can be taken even by a forest guard. The restriction to trade is imposed unless permitted under section 44 of the act. Reading the provisions of the act, it becomes clear that forest guards are required to look after the trees, timber and forest produce. The forest officer which includes the forest guard has power to arrest a person without a warrant for his having connected in any forest offence punishable with imprisonment in terms of section 36 of the act. Thus reading the provisions contained in the act under which the forest guard is required to discharge his duties clearly reveals that the shepherds can not be compared that they were to par with forest guards.

Law declared by apex court and the facts of this case.

21. The apex court in the case of state of Madhya Pradesh vs. Pramod Bhartiya, reported in air 1993 sc 286 considered the various judgments of the apex court. In para 2 of the court pointed out as under:

" in Ranbir sing (air 1982 sc 879 ) Chinnappa Reddy, j. Speaking for the bench of three learned judges said:

" we conceded that equation of posts and equation of pay and matters primarily for the executive government and expert bodies like the pay commission and not for courts but we must hasten to say that where all things are equal that is where all relevant consideration are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments, of course, if officers of the same rank perform dissimilar functions and the power, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same......construing article 14 and 16 in the light of the preamble and article 39(d) we are of the view

That the principle equal pay for equal work is deducible from those articles and may be properly applied to case of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay no identical work under the same employer."

22. It is very clear that "differentiation" is sought to be justified in view of the nature and the type of work done, the apex court pointed out that the same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact. Some lessit varies from nature and culture of employment." the apex court further pointed out in para 12 as under:

"It would be evident from the definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, as pointed out by Mukherji, jj (as he then was) federation of all India customs and excise stenographers (air 1988 sc 1291 ) the quality of work may vary from post to post, it may vary from institution to institution. We can not 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 nontechincal lecturers in technical colleges. They have also failed to establish that the distinction between their scale of pay and that of nontechnical lecturers working in technical schools is either irrational and that it has no basis, or that it is vitiated by malafides, either in law or in fact ( see the approach adopted in federation case (air 1988 sc 1291 )" it must be remembered that since the plea of equal pay for equal work has to be examined with reference to article 14, the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be." this burden, the original petitioners (respondents herein) have failed to discharge.

23. Thus one has to examine the duties, responsibilities and functions, whether they are similar to those of shepherds and the forest guards or not in the instant case.

24. What apex court in case of Babu lal vs. New Delhi municipal committee reported in air 1994 sc 2214 , has observed is also to be seen. What is required to be seen is that the persons are discharging similar duties to that of other employees having same status and similar responsibilities. It is required to be noted that in that case the SWD beldars and SWD mates were under the administrative control of the health department. The appointing authority was the same. Even the disciplinary authority was the same. Manner of appointment was the same, promotional avenues were the same. The SWD beldars are promoted as mates on the basis of seniority from amongst SWD beldars and mates, the promotion are effected and for the mates, the promotions are effected to the post of assistant sanitary inspector on the basis of 10 years service and qualifying a departmental written test. The higher promotion were also granted from amongst these promoted persons. It was admitted position that work of SWD beldars and SED mates is almost the similar to the swermen/ swermates and SD lorry beldars. In the instant case there is no common post for higher promotion and feeding channel for promotion is also different. Over and above the duties to be discharged can not be said to be the same or even similar.

25. The apex court in the case of "Girh Kalyan Kendra workers union vs. Union of India and ors. Reported in air 1991 sc 1173 , has pointed out that equal pay for equal work is not expressly declared by the constitution as a fundamental right but in view of the directive principles of state policy as contained in art.39 (d) of the constitution "equal pay for equal work" has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in art.14 and 16 of the constitution. It was pointed out that mathematical accuracy is not needed. In that case pursuant to the directions of the court parties including the petitioners appeared before the former chief justice and after considering the entire material, the former chief justice submitted an elaborate report to the court making comprehensive suggestions and thus the suggestions were accepted, on the basis of the report submitted by the former chief justice and the decision was rendered. It was also held that it was not open to reopen the same question by means of the writ petition. It is required to be noted that in view of the duties to be discharged by the shepherds and the forest guards, the physical fitness has been prescribed. Person possessing the physical fitness for shepherd can not be appointed as forest guard. However, a person having physical fitness for the post of forest guard can be appointed as a shepherd. The classification is based on physical fitness also. May be initially the salary was the same. However, both were distinctly referred. One is a shepherd and another a forest guard. Considering various other aspects. Such as promotion, quota in appointment, relaxation of educational qualification for shepherds, Nature of work being different, if there is classification and two different scales are provided, it can not be said that the same is violative of art. 14 and 16 of the constitution of India. Even in case of two class of employees gazetted supervisors holding degree in engineering and the order class of nongazetted supervisors being diploma and licence holders, the apex court in case of " V.Markendeya vs. State of A.P. Reported in air 1989 sc 1308 held that on the basis of difference in educational qualification such difference in pay scale was justified and can not be violative of article 14 and 16 of the constitution of India. In the instant case the duties to be discharged by the shepherds and the forest guards are quite distinct. One has to analyze the relevant rules, orders, nature of duties, functions, measure of responsibilities required for the relevant post. The court does not find that by classification made by the state, different treatment to the two classes of employees were given, and were discriminated in violation of the equality under article 14 and 16 of the constitution of India.

26. The apex court in case of V. Markendeya (supra) pointed out that principle of equal pay for equal work is applicable among equals, it can not be applied to unequals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that discrimination is practiced by the state in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same. 27. Reliance is placed by the state on the decision of the apex court in case of state of Tamil Nadu Vs. Alagappan reported in air 1997 sc 2006 . The agricultural officers directly recruited from open market having qualification as bachelor in agriculture while fora promotee deputy agricultural officers, the minimum educational qualification was SSLC equivalent to 10+2 standard examination with suitable diploma laid down by the rules. It was contended that both were discharging same type of duties i.e as agricultural officers. There was not only difference in pay scale but the agricultural officers were given upward revision which was not offered to dy. Agri. Officers, though they were discharging similar duties. In that case dy. Agri. Officer is not required to have a degree of graduation in agriculture (B.sc. Agri) which is the basic requirement. Even dy. Agricultural officer can be assumed to perform the duties of agriculture officer when they are assigned such duties and thus duty was interchangeable. The distinction between the two was that dy. Agri officer belong to subordinate service and the educational qualification was lower. The court pointed out that they did not form similar class of employees even though they may be substantially discharging the same type of duties and their place of work may be interchangeable. A glaring difference which results into making them fall in a distinct and separate category of employees deserves to be kept in view. In the first place the contesting respondents are recruited by promotion from the lower category of assistant agriculture officers. On promotion as dy. Agri. Officer they remain non gazetted employees in the subordinate service. These difference were taken into consideration by the court. Thus it is very clear that two classes of officers were discharging similar duties yet on the basis of educational qualification and the direct recruitment to a higher post, the equal pay for equal work has been denied.

28. In para 7 of the judgment the apex court pointed out as under:

"It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting art. 14 if sought to be applied to them."

29. The constitution bench of the apex court in case of state of Mysore vs. P. Narasing rao, (air 1968 349) clearly ruled that higher educational qualification furnish a relevant consideration for fixing higher pay scales and consequently the classification of two grades of tracers in two differently scales by the new Mysore state was not violative of arts. 14 or 16 of the constitution of India. Thus the tracers were carrying out the same type of work. However, it has been pointed out that there was nothing wrong in awarding higher pay scale to matriculate tracers as compared to nonmatriculates.

30. Even differentiation between graduate and nongraduate supervisors in the matter of promotion can not be held to be invalid.(air 1974sc1613).

31. In absence of any material to show that qualification, duties and functions are similar to that of forest guards, there is no question of considering the question of parity merely because once upon a time both were in the same grade.

32. Even if work being discharged by the persons is of similar nature yet there can be difference of pay. In the instant case there is no question of discharging the same duties but even the duty is discharged by the forest guards are quite distinct and different and can not be compared with the duties discharged by the shepherds for six hours a day that too in a farm.

33. The apex court in state of Haryana vs. Jasmer singh and others reported in air (1996) 11 SCC 77 has pointed out that the principle of "equal pay for equal work" is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organizations or in the same organisation. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scale on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance could be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. The evaluations of such jobs for the purpose of pay scale must be left to except bodies and unless there are any malafides its evaluation should be accepted.

34. In the case of union of India vs. Pardip kumar dey reported in (2000) 8 SCC 580 the apex court considered the case of radio operators. Division bench of the high court in the said case allowed the appeal stating that admittedly the respondent was performing technical duties and was performing more hazardous job, the radio operators in CRPF were not only performing similar nature of duties as that of radio operators of the central water commission or the directorate of police wireless but they were also performing more harzardous duties. The union of India as opined by the divisional bench in view of the fact that the recommendation was made for higher pay scale, however, after the pay commission turned down the same, took a different view and pointed out conflicting stand, one before pay commission and the other before the court. The apex court in para 8 of the judgement pointed out that the division bench was not right and justified in giving direction to grant pay scale in absence of material relating to other comparable employees as to the qualification, method of recruitment, degree of skill, experience involved in performance of job, training required, responsibilities undertaken and other facilities in additionto pay scales. Apex court held that the learned single judge was right when he stated in the order that in absence of such material it was not possible to grant relief to the respondent.

35. In the instant case learned counsel for the shepherd relied upon a document namely letter written by director sheep husbandry to the chief secretary on 28.6.1996. The director, respondent no.3 stated as under in the said letter.

"In the first instance the post of petitioners and the post of forest guards were in the same category as both the cadres were in common scale. The nature of duties of the both cadres are identical and in case of shepherds it is more difficult and hazardous. By virtue of other divisions the petitioners were placed in the lower grade than those of forest guards which is quite discriminatory to the shepherding staff.

The petitioners have to look after the sheep/goats in the high land pastures with high risks in den forests, and their lives are subject attacks by the wild animals.

The writ petition is lying in the Honble high court and this office is attending for hearing whenever it comes become the court.

It is submitted that the shepherding staff has to work at high land pastures and farms round the clock, the grievance expressed in the writ petition are justified and it is requested to kindly redress these grievance and their pay revised for which case is submitted strongly."

36. Thus on this letter strong reliance was placed even before the learned single judge for considering the case of both shepherds and forest guards, for being treated at par. In case of union of India vs. Pardip Kumar Dey (supra), there was recommendation. The directorate of CRPF made recommendations to the pay commission for giving higher pay scales on the basis of which claim is made by respondents for grant of pay scale. The factual statements contained in the recommendation of a particular department alone can not be considered perse proof of such things or they can not by themselves vouch for the correctness of the said recommendation. The same could not be taken as a recommendation made by the government. Even otherwise a mere recommendation did not confer any right on the respondents to make such a claim for writ of mandamus.

37. In view of the what is pointed out by the apex court, the arguments advanced by the learned advocate for the original petitioner can not accepted. In the instant case on the oath it has been pointed out that shepherds were working only for six hours and that too in the farms. In view of this the contents of the letter can not be relief upon. It appears that the author of the letter has exceeded his authorities. He was not asked by the state government to examine the case of the shepherds and the forest guards and to recommend the case. We have indicated earlier as to the duties of forest guards are quite distinct and different. It can not be compared, however, for the reasons best known to the officer, has addressed the letter, which can not be taken into consideration and in our view, in view of the decision of the apex court in the case of union of India vs. Pardip Kumar Dey (supra) the reliance on such letter could not be placed in the matter of fixation of pay.

38. At this juncture it would be relevant to point out what apex court has held in case of S.I. Anand vs. Union of India and ors. Reported in (1982) 2 SCC 258 as under:

"If the government has prescribed a particular pay scale in respect of them, all that court can do is to merely pronounce validity of that fixation. In the event that the court finds that the prescription is contrary to law it will strike it down and direct the government to take a fresh decision in the matter. It is very different case from one where this court has sought to prescribe pay scales in appeals directly preferred from an award of the Labour court dealing with such a matter. In the latter case this court in its appellate jurisdiction can be regarded as enjoying all the jurisdiction which the labour court enjoys. That is not so in the present case."

39. In case of state of U.P. Vs. J.P. Chaurasia reported in (1989) 1 SCC 121 pointed out as under:

"The high court was, therefore, not right is directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wages is prescribed for such workers, the respondents would be entitled to it. If it is more than what they are being paid."

40. Another aspect required to be borne in mind is, this court would not like to interfere in the facts and circumstances of this case and also as the apex court has pointed out in case of union of India vs. Pardip Kumar Dey with emphasis after considering various judgements as under:

"This court also said that the judgment of an administrative authorities concerning the responsibilities which attach to the pos and the degree of readability expected of an incumbent would be a value judgment of the authorities concerned, which, if arrived at bona fide, reasonably and rationally was not open to interference by the court."

41. In case of union of India vs. P.v. Hariharan, reported in (1997) 3 SCC 568 the apex court observed as under:

"It is the function of the government which normally acts on the recommendations of a pay commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above are below, put forward their claims on the basis of such change. The tribunal should realize that interfering with the prescribed pay scales is a serious matter. The pay commission, which goes in to the problem at great depth and happens to have authority to decide this issue. Very often the doctrine of "equal pay for equal work" is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board."

42. In case of state of west Bengal and others vs. Deb Kumar Mukharjee reported in air 1995 sc 1889 , the case of inspectors in animal husbandry departments and the Inspectors in housing departments was before the court. Before the high court it was contended that the maintenance of two grades in the cadre of inspectors was violative of the principles of "equal pay for equal work" as the inspectors Garde I and ii were performing similar duties and their posts were interchangeable. Other ground raised was that the inspectors in the housing department are entitled to the pay scale 4251050 which was being drawn by inspectors in animal husbandry department on the ground that inspectors in both the departments were performing almost identical duties. The high court held that since the inspectors in the animal husbandry department were in the grade of Rs. 4251050, inspectors in the housing department should also be entitled to the same. The apex court pointed out that there is a fallacy for the reasons that there is nothing common in the housing department and the animal husbandry department. The two departments stand apart. Another the judgement of the learned single judge indicates any factual material to show that the duties of inspectors in the two departments are similar. The apex court held that the reasons and the findings of the high court on the face of it, can not be sustained. 43. In the instant case as indicated earlier there is nothing in common between the forest guards and the shepherds. The Apex court also pointed out that the pay commissions during the last three decades examined the revision of pay scales of various cadres in the state. On the basis of material placed before the pay commission the two grades in the case of inspectors in the housing department were maintained similarly the pay commission recommended different pay scales for inspectors of different departments of the government. The apex court pointed out that the high court in its writ jurisdiction was not justified in arriving at a finding.

Conclusion

44. In view of the fact that the law laid down by the apex court makes it very clear that ordinarily court should not interfere in the administrative decision of the government with regard to the pay scale and that in the instant case as the forest guards and the shepherds are discharging quite distinct and different duties there is no question of comparison.

It can not be said that the shepherds are discharging the same duties which are being discharged by the forest guards, therefore, the claim made by the original petitioners is without basis whatsoever. They have not initiated action soon after the first revision or the second revision of pay and after accepting the same, now it is not open to challenge.

45. In view of what is stated hereinabove, the appeal filed by the state is required to be allowed with costs and the cross objections filed by the original petitioner, having no merit must be dismissed with costs.