Sadou Axom Prathamik TET Uttirno Sikshak Samaj v. The State of Assam

Background Facts:-

3. The background facts, leading to filing of the present petition, is briefly stated as under:- “The members of the Petitioner Association, are all TET qualified Teachers appointed in different LP/UP Schools in the state of Assam since 2012, onwards under SSA. They were initially appointed on fixed pay and since April, 2013 they have been receiving their salary at par with the pay structure of regular teacher. They have been granted the benefit of the 7th Pay Commission w.e.f. 01-04-2017. Thereafter, the Government, Vide notification dated 1-7-2020, has provided some additional service benefits to the contractual teachers, who were engaged during 2012-2017 and joined on or before 01-01-2018. Thereafter, the Govt. has decided to pay 5% DA/DR to the teachers w.e.f. July, 2019, 11% D.A w.e.f. 01/07/2021, 3% w.e.f. 01/07/2021 and 3% w.e.f. 01/01/2022 and issued different OM/Notifications. The Government also paid to the regular teachers the arrear amount accrued on such enhanced D.A. But, the Government, instead of paying the arrear of the said DA/DR, had passed the impugned order, dated 01-09- 2022, issued under Memo No.PMA.52/2020/Pt./30-A, and thereby depriving of the members of the petitioner Association from getting the arrear DA/DR. Being aggrieved, the petitioners have preferred the present application for equitable relief.”

4. The respondent No.1 has filed its affidavit in opposition, wherein, it had taken a stand that the said claim of the petitioner association is wholly misconceived, untenable and devoid of legal foundation. Being contractual employees engaged under a specific scheme, the petitioners cannot claim parity with regular Government employees, whose service conditions are governed by statutory rules. It is also stated that the entitlement of the petitioners to D.A. and other allowances is strictly regulated by the terms of their contractual engagement and by specific orders or notifications, issued by the competent administrative department, from time to time and as such they have no vested right or enforceable claim to seek D.A. benefits from the dates applicable to regular employees of the State Government. It is also stated that the Government in the Department of School Education, after due consideration of all relevant facts including the financial and resource position of the State, had taken a conscious decision to extend the benefit of enhanced Dearness Allowance to contractual teachers and staff under SSA, Assam only prospectively. Accordingly, vide Notification No. PMA.52/2020/170, dated

19.01.2022, the Government allowed payment of ennanced D.A. @ 5% w.e.f. 01.01.2022, to the Contractual and State Pool Teachers under SSA, Assam, and subsequently, vide Notification No. PMA.52/2020/Pt./30, dated 01.09.2022, further enhancement of 10% w.e.f. 01.09.2022 and 7% w.e.f. 01.04.2023 was sanctioned. Said notifications were issued in exercise of the powers vested in the competent authority of the Elementary Education Department and represent independent policy decisions applicable to contractual employees under the SSA framework. The same cannot be equated with or automatically linked to the Office Memorandum of the Finance (Estt-A) Department, which are applicable only to regular State Government employees governed by statutory service rules. As such, there arises no occasion or legal justification for payment of arrears of D.A. for the earlier periods as claimed by the petitioners. The Government, having extended the benefit of enhanced D.A. prospectively, has fully discharged its obligation accordance with policy decisions applicable to the category of employees, to which the petitioners belong. Further, it is stated that the Office Memorandum of the Finance (Estt-A) Department No. FEG.08/2017/95, dated 18.08.2021 (enhancement @ 11% w.e.f. 01.07.2021), OM No. FEG.08/2017/108 dated 06.12.2021 (enhancement @ 3% w.e.f. 01.07.2021), and OM No. FEG.08/2017/115 dated 25.04.2022 (enhancement @ 3% w.e.f.

01.01.2022) are applicable only to regular Government employees and pensioners. These OMs are not automatically applicable to contractual employees, serving under schemes such as SSA. The petitioners' reliance upon these OMs to claim parity is, therefore, misplaced and legally unsustainable. It is also stated that the petitioners' members were initially engaged on contractual basis at a fixed remuneration, under a written agreement with the respective School Management Committees for a specific term. The said contractual terms did not confer entitlement to Dearness Allowance or other allowances as admissible regular employees. Their service conditions remained distinct and independent from those of permanent Government employees. Subsequently, vide Notification No. ΡΜΑ.38/2020/26 dated

01.07.2020, the Government, as a matter of policy, extended certain benefits to these contractual teachers, such as continuity of service, leave and entitlement of salary, with effect from

01.07.2020. However, the said notification does not confer any right to Dearness Allowance or any other allowance as applicable to regular employees of the State Government. Similarly, vide Notification No. PMA.38/2020/27, dated 01.07.2020, analogous benefits were extended to Assistant Teachers (State Pool) under SSA, but even this notification remains silent with regard to any entitlement of allowances including D.A. Hence, the contractual or State Pool teachers under SSA cannot derive any right to claim D.A. at par with regular employees of the Government. Further, it is stated that the Government, in extending the benefit of D.A. prospectively, under Notifications dated 19.01.2022, and

01.09.2022, has acted within its lawful authority and financial prudence. The petitioners cannot demand retrospective monetary benefits merely by analogy or comparison with regular employees, in the absence of any statutory or contractual provision supporting such a claim. Further contention is that the Director of Elementary Education, Assam, vide advertisement No. E-532785/8, dated

06.08.2024, initiated a Special Recruitment Drive (SRD) for regularization of Contractual and State Pool Teachers under SSA, Assam, against 35,133 regular posts of Assistant Teachers. And pursuant to the said drive, a substantial number of such teachers have already been regularized and brought under the regular pay structure of the State Government, thereby enjoying full benefits admissible under service rules. And as such, the claims and reliefs sought by the petitioners are wholly untenable both in law and on facts. The petitioners have already been granted enhanced D.A. benefits in accordance with departmental policy decisions, and no arrears or retrospective benefits are admissible to them. The writ petition is therefore liable to be dismissed.

5. The petitioners association has filed reply to the affidavit in opposition of the respondent No.1, denying the statement and averments made therein. It is stated that the members of the petitioner Association are the contractual employees. And that only on the basis of the promise made by the authorities, the petitioner Association has raised the grievance. It is stated that as disclosed by the letter, dated 28-07-2017, the Govt. has taken decision for giving same benefit to the contractual teachers that of regular teachers in the year 2017 itself. Having deciding to do so the authority, cannot now say that the enhancement of Dearness Allowance from July 2019 to August, 2022 at different rates will not be applicable with respect of the members of the petitioner Association. The argument the members of the petitioner Association cannot claim parity of regular Govt. employees is contrary to the decision taken by the Govt., and that the petitioner have been seeking enhancement of their Dearness Allowance prior to January, 2022 to which they are entitled on the basis of the decision taken by the Govt. and the stand so taken by them is bereft of merit and liable to be discarded. Having taken a policy decision to give the members of the petitioner Association benefit equal that of regular employees, now they cannot turn back to say that the members of the petitioner Association are not entitled to such benefit. It is more surprising that the authorities of the Education department, for number of occasions, have submitted before this Court that the Govt. is positively considering the grievance of the petitioners. Based on such assurance, this Court was also pleased to give time to the Education department, as is apparent from the order dated 7-1-2025, 7-2-2025, 22-4-2025, 14-5-2025, 23-5- 2025, 6-8-2025 and 29-8-2025 of this Court. It is further stated that respondent No.1 has confused the State Pool Teachers with the Contractual Teachers, while the state pool teachers were appointed since the period 2017 on contractual basis, the members of the petitioner Association, on the other hand, were appointed since 2012 and the salary structure of the petitioners was fixed at per Revision of Pay Rule, 2010, w.e.f.1-4-2013. The members of the petitioner Association are not raising the grievance on behalf of State Pool teachers.

6. Mr. Borthakur, learned counsel for the petitioners, submits that the members of the petitioners’ Association are all TET qualified Teachers and they were appointed in different LP/UP Schools in the state of Assam since 2012, onwards under SSA. Though, initially they were appointed on fixed pay, since April, 2013 they have been paid salary at par with the pay structure of regular Teacher and they have been granted the benefit of the 7th Pay Commission w.e.f. 01-04-2017, vide letter 28.07.2017, No. PMA-457/2017/30. He also submits that vide Notification dated 1-7-2020, the Govt. has provided some additional service benefits to the Contractual Teachers, who were engaged during 2012-2017 and joined on or before 01-01-2018.

6.1. Mr. Borthakur also submits that by issuing different OM/Notifications, the Govt. has decided to pay 5% DA/DR to the teachers w.e.f. July, 2019, 11% D.A w.e.f. 01/07/2021, 3% w.e.f. 01/07/2021 and 3% w.e.f. 01/01/2022 and also paid to the regular Teachers the arrear amount accrued on such enhanced D.A. But, vide impugned order, dated 01-09-2022, the Govt. has deprived of such benefit to the members of the petitioner’s Association.

6.2. Mr. Borthakur also submits that the members of the petitioner’s Association and the regular teachers are discharging the same responsibility and works and as such depriving them of the benefit of arrear pay amounts to discrimination and violative of Article 14,16(1) of the Constitution of India. Under such circumstances, Mr. Borthakur has contended to allow this petition. In support of his submissions, Mr. Borthakur has referred following decisions:- (i) E.P. Royappa v. State of T.N., reported (1974) 4 SCC 3, (ii) Rofiqul Islam vs. State of Assam & Ors. reported in 2025 (6) GLT 810,

7. Per contra, Mr. Khataniar, learned standing counsel for the respondent Nos.1—3, has opposed the petition and raised following points for consideration of this Court: (i) The members of the petitioners' Association were initially engaged on contractual basis at a fixed remuneration, under a written agreement with the respective School Management Committees for a specific term. The said contractual terms did not confer entitlement to Dearness Allowance or other allowances as admissible regular employees. Their service conditions remained distinct and independent from those of permanent Government employees. (ii) The Government, having extended the benefit of enhanced D.A. prospectively, has fully discharged its obligation in accordance with policy decisions applicable to the category of employees to which the petitioners belonging. (iii) They have no vested right or enforceable claim to seek D.A. benefits from the dates applicable to regular employees of the State Government, whose service conditions are governed by statutory rules. (iv) The Govt., after due consideration of all relevant facts including the financial and resource position of the State, had taken a conscious decision to extend the benefit of enhanced Dearness Allowance to contractual teachers and staff under SSA, Assam only prospectively. (v) The petitioners cannot demand retrospective monetary benefits merely by analogy or comparison with regular employees, in the absence of any statutory or contractual provision supporting such a claim.

7.1. Under the aforesaid facts and circumstances, Mr. Khataniar submits that there is no merit in this petition and therefore, it is contended to dismiss the same. He has also referred following decisions in support of his submission: (i) State of Punjab v. Surjit Singh, reported in (2009) 9 SCC 514. (ii) State of Bihar v. Bihar Secondary Teachers Struggle Committee, reported in (2019) 18 SCC 301.

8. In view of the rival contentions made by the parties in their respective pleading and also the rival submissions made by the their respective counsels, the issue to be decided by this Court is:- (i) Whether the members of the petitioners Association are discharging the same duties like the regular teachers and if so denial of arrear DA to the member of petitioners’ Association has violated the provision of Article 14 and 16(1) of the Constitution of India?

9. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also perused the order, dated 01-09-2022, issued under No.PMA.52/2020/Pt./30 by Secretary the Govt. of Assam, Elementary Education Department (Annexure-H). Also gone through the decisions referred by Mr. Borthakur, learned counsel for the petitioners.

10. From the contentions being made in the respective pleadings of the parties and also from the submissions of learned counsel for both the parties, following facts and circumstances emerges:- (i) Sadou Axom Prathamik TET Uttirno Sikshak Samaj, is an association of all TET qualified Teachers appointed in different LP/UP Schools in the state of Assam since 2012, onwards under SSA. (ii) They were appointed on fixed pay and since April, 2013 they have been receiving their salary at par with the pay structure of regular Teacher. (iii) They have been granted the benefit of the 7th Pay Commission w.e.f. 01-04-2017. (iv) The Government, vide notification dated 1-7-2020, has provided some additional service benefits to them, who were engaged during 2012-2017 and joined on or before 01-01-2018. (v) The Govt. has decided to pay 5% DA/DR to the teachers w.e.f. July, 2019, 11% D.A w.e.f. 01/07/2021, 3% w.e.f. 01/07/2021 and 3% w.e.f. 01/01/2022 and issued different OM/Notifications. (vi) The Govt. has also paid to the regular Teachers the arrear amount accrued on such enhanced D.A. (vii) The Govt. instead of paying the arrear of the said DA/DR, to the members of the petitioner’s Association, had passed the impugned order, dated 01-09-2022, issued under Memo No.PMA.52/2020/Pt./30-A, and depriving the members of the petitioner’s Association from getting the arrear DA/DR. (viii) It is not in dispute that the members of the petitioners Association, being contractual teachers are discharging the same duties like the regular teachers. There is no contention in this regard in the affidavit filed by the respondent No.1 nor there is any submission made by Mr. Khataniar, learned standing counsel for the respondent Nos.1—3, during argument.

11. In this context, this Court deemed it appropriate to re- produce the impugned order, dated 01-09-2022, issued under No.PMA.52/2020/Pt./30, and depriving the members of the petitioner’s Association from getting the arrear DA/DR, herein under:- GOVERNMENT OF ASSAM ELEMENTARY EDUCATION DEPARTMENT Dispur, Guwahati-6 No. PMA.52/2020/Pt/30 Dated Dispur, the 1st September, 2022 O R D E R In pursuance of the Govt. Notification No. PMA.52/2020/170 dated 19/01/2022, the Contractual Teachers (Contractual & State Pool) and Other Staff/ Officers under SSA, Assam have been drawing 17% Dearness Allowance (D.A.) w.e.f. January, 2022. Meanwhile, Govt. in Finance Department further enhanced 17% D.A. (11% w.e.f. 01/07/2021 vide OM No. FEG.08/2017/95 dated 18/08/2021.3% w.e.f. 01/07/2021 vide OM No. FEG.08/2017/108, dated 06/12/2021 and 3% w.e.f. 01/01/2022 vide OM No. FEG.08/2017/115 dated 25/04/2022). As such Government in Elementary Education Department is pleased to allow the following D.A. benefits to the Contractual Teachers and Other Staff/Officers under SSA, Assam.

1. 10% enhancement of D.A. w.e.f. 1st September,

2. Balance 7% enhancement of D.A. w.e.f. 1st April, 2023.

3. Henceforth, D.A. will be released immediately as and when State Govt. announces. Sd./- Dr. Bijoya Choudhury, IAS, Secretary to the Govt. of Assam Elementary Education Department Memo No.PMA.52/2020/Pt./30-A Dated Dispur, the 1st September, 2022

12. It is to be noted here the letter, dated 28.07.2017, by which the Commissioner and Secretary to the Government of Assam has decided to extend the benefit of 7th Pay Commission is also reproduced herein below for proper appreciation of the rival contention of the parties. GOVT. OF ASSAM ELEMENTARY EDGUCATION DEPARTMENT Dispur, Guwahati-6 No.PMA 457/2017/30 Dated, Dispur the 28th July 2017 From: Shri Preetom Saikia, IAS, Commissioner & Secretary to the Govt. of Assam. To: The Mission Director, SSA, Assam, Kahilipara, Guwahati-19. Sub.: Regarding giving benefits of 7th Pay Commission to the teachers and staff of SSA, Assam. Ref.: Your letter (sic) dated 29-06-2017 in File No.SSA/ Esstt./ Enhancement/Salary- IA/530/2011/Vol.I. Madam, In inviting a reference to the above, I am directed to state that from the beginning it was decided that the contractual L.P/UP teachers under SSA will get same benefit of regular teacher under the Directorate of Elementary Education, Assam. Accordingly, you are requested to extend the 7th Pay Commission benefit to the contractual teacher of SSA w.e.f. 01-04-2017. Here, it may be pointed out that regarding allowing Grade Pay of Rs.8700/- to untrained Graduate Teachers as per 7th Pay Commission under the Directorate of Elementary Education, Assam who have been drawing Grade Pay of Rs.2500/- as per ROP 2010, the matter was referred to Finance (PRU) Deptt., and as per their advice, the matter has been placed before the Anomaly Committee and their decision recommendation is awaited. As such, while extending benefit of 7th Pay Commission to the contractual teachers under SSA, above matter may be kept in mind. As regards, for extending benefit of 7th Pay Commission to the non-teaching staff under SSA, matter may be placed before the Executive Committee for their guidance and subject to availability of fund under contingency unlike teachers and also in the line of the Notification No.SSA/Esstt./33/2003 /2152 dated 03-07-2012. Accordingly, you will make a calculation with regard to the similar categories of employees under the State Govt. and then place it before the Executive Committee for their consideration. The Executive Committee may extend the same benefit or 70% as per Notification dated 03-07-2012. It may be noted that issues of extending benefit of 7th Pay Commission to contractual teachers & non-teaching staff under SSA are not same. Yours faithfully Sd./-Illegible Commissioner & Secretary to the Govt. of Assam, Elementary Education Department Memo No.PMA.457/2017/30-A Dated Dispur, the 28th July, 2017

13. Thus, from the letter No.PMA 457/2017/30, Dated,

28.07.2017, issued by the Commissioner & Secretary to the Govt. of Assam, Elementary Education Department and addressed to the Mission Director, SSA, Assam reveals that the Govt. has decided that the contractual L.P/UP teachers under SSA will get same benefit of regular teacher under the Directorate of Elementary Education, Assam.

13.1. It also appears that the impugned order dated 01.09.2022 was passed based upon Govt. Notification, No. PMA.52/2020/170 dated 19.01.2022, (Annexure-F), which read as under:- GOVERNMENT OF ASSAM ELEMENTARY EDUCATION DEPARTMENT ORDERS BY THE GOVERNOR OF ASSAM, DISPUR GUWAHATI-6 NOTIFICATION Dated Dispur, the 19th January, 2022 No. PMA.52/2020/170. In pursuance of the Cabinet decision in the meeting held on 01.01.2022, the Governor of Assam is pleased to enhance 5% Dearness Allowance for Contractual Teachers and other Staff/Officers under SSA, Assam with effect from

01.01.2022. Further, decisions on repayment of arrears will be taken later on. Sd./- Dr. B.K. Chakravarthy. IAS Principal Secretary to the Government of Assam, Education Department Memo No.PMA.52/2020/170-A Dated Dispur, the 19th January, 2017

14. Form the impugned order dated 01.09.2022, it becomes apparent that Govt. in Finance Department further enhanced 17% D.A. (11% w.e.f. 01/07/2021 vide OM No. FEG.08/2017/95 dated 18/08/2021, 3% w.e.f. 01/07/2021 vide OM No. FEG.08/2017/108 dated 06/12/2021 and 3% w.e.f. 01/01/2022, vide OM No. FEG.08/2017/115 dated 25/04/2022). However, the Secretary to the Govt. of Assam, Elementary Education Department had allowed the D.A. benefit to the contractual teachers as under i.e. 10% enhancement of D.A. w.e.f. 1st September, 2022, and balance 7% enhancement of D.A. w.e.f. 1st April, 2023. The dates can be depicted in the chart below:- Sl. No. Regular Teachers With Percentage Of D.A. 01.07.2021 01.07.2021 01.01.2022

01. 11% 02. 3% 03. 3% effect Contractual Teachers Percentage Of D.A. 10% 7% With 01.09.2022 01.04.2023 effect

15. Thus, it appears that though the respondent No.1 had passed the impugned order dated 01.09.2022, pursuant to the Notification No. PMA.52/2020/170, dated 19.01.2022, yet a careful perusal of the said Notification, dated 19.01.2022, indicates that the Governor of Assam has decided to enhance 5% DA for the contractual teachers and other staffs/Officers under SSA with effect from 01.01.2022. In view of above facts and circumstances, the impugned order dated 01.09.2022, appears to be contradictory not only to the Notification, dated 19.01.2022, but also to its own letter dated 28.07.2017, whereby the Government had decided to extend the benefit of 7th Pay Commission to the teachers and staffs of SSA. In view of the letter dated 28.07.2017, whatever benefit is being extended to the regular Teachers under the 7th Pay Commission, the same has to be extended to the Contractual Teachers and staffs also.

16. However, a classification is being sought to be made by the respondent No.1 in its affidavit in opposition and also by the learned standing counsel for the respondent No.1 between the regular teachers and contractual teachers that the contractual terms of the petitioners, who were initially engaged on contractual basis at a fixed remuneration, did not confer entitlement to Dearness Allowance or other allowances as admissible to regular employees and that their service conditions remained distinct and independent from those of permanent Government employees.

16.1. Unfortunately, such contractual terms had not been placed on record before this Court to substantiate such a plea. Rather, the letter dated 28.07.2017 (Annexure-B) goes to show that the Government had decided to extend the benefit of 7th Pay Commission to the teachers and staffs of SSA. If D.A. is enhanced to the regular teachers under the 7th Pay Commission from time to time, the respondent No.1 is bound by its own decision to extend similar benefit to the contractual teachers also.

16.2. Moreover, in para No.10 of this judgment it has already been held that there is no dispute that the members of the petitioner’s Association, being the contractual teachers are discharging the same duties like the regular teachers. There is no contention in this regard in the affidavit filed by the respondent No.1 nor any submission was made by Mr. Khataniar, learned standing counsel during his argument. In view of above, the classification, being sought to be made between the regular teachers and contractual teachers appears be not based upon any intelligible differentia.

16.3. It is to be noted here that classification, to be reasonable, must fulfill the following two conditions:- (i) The classification must be founded on the intelligible differentia which distinguishes persons or thing that are grouped together from others left out of the group; (ii) The differentia must have a rational relation to the the act. to be achieved by sought object The differentia, which is the basis of the classification and the object of the act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the act which makes the classification. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory.

16.4. It is well settled that Article 14 of the Constitution of India forbids class legislation, it does not forbid reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. But, classification must not be “arbitrary, artificial or evasive”. It must always rest upon some real and substantial distinction, bearing a just and reasonable relation to the object sought to be achieved by the legislation. Notably, Article 14 read as under:- ‚The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India‛. The first portion of the article speaks of equality is a guarantee that no individual is above the law. This guarantee is affected by its analogy in the second portion, which provides equal protection of the legislation to individuals. Therefore, any exception to equality is only permissible, if the State has reasonable grounds for different treatment of individuals. Therefore, the validity of state action relies on an assessment of the reasons for state action. This is an important connection in Article 14 between equality and rationality.

16.5. Thus, as submitted by Mr. Borthakur, the learned counsel for the petitioners, this Court afraid the impugned order, dated

01.09.2022, may not withstand test of reasonable classification, as laid down in the case of E.P Royappa (supra), so referred by him. Notably, in the case of E.P. Royappa (supra) in para No.85, Hon’ble Supreme Court has held as under:- “85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., ‚a way of life‛, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be ‚cribbed, cabined doctrinaire limits. From a positivistic point view, arbitrariness. arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also antithetic equality traditional confined‛ political equality within In violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and permissible outside considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.‛

16.6. Again in the case of D.S. Nakara vs. Union of India, reported in (1983) 1 SCC 305, Hon’ble Supreme Court has reiterated the principle enunciated in the case of E.P. Royappa (supra). In the said case, the Government issued an office memorandum announcing a liberalized pension scheme for retired government servants, but made it applicable to those who had retired after 31st March, 1979.

16.7. Then dealing with the issue, Hon’ble Supreme Court has held that the division, that distinguished pensioners into two classes based on their specific date of retirement is completely void of any rational principle and is both arbitrary and unscrupulous, being unrelated to the objective sought to be accomplished by granting liberalized pension. It also violates the equal treatment guaranteed in Art. 14 of the Constitution as well as the pension rules, which were statutory in nature, meted out differential and discriminatory treatment to equals in the matter of calculation of pension from the dates specified in the challenged memorandum.

16.8. In the case of Madhu Limaye v. Supdt. Tihar Jail Delhi, reported in (1975) 1 SCC 525, Hon’ble Supreme Court has reiterated the same principle. In the said case, there were Indian and European Prisoners in the jail. Both were treated differently. European gets better diet. Hon’ble Supreme Court has held that difference between Indian and European prisoners in the matter of treatment and diet violates right to equality under Article 14 of Indian prisoners. They all are prisoners they must be treated equally.

16.9. Therefore, the classification sought to be made by the respondent No.1 and its counsel, left this Court unimpressed. And therefore, this Court is unable to agree with the same. This Court has already held about absence of quarrel at the Bar about the similar nature of duties performed by the members of the petitioner’s Association, being the contractual teachers and also by the regular teachers. In the case of the State of Punjab & Ors. vs. Jagjit Singh, reported in (2017)1 SCC 148, Hon’ble Supreme Court while dealing with the principle of ‚equal pay for equal work‛, considering some of its earlier decisions, Hon’ble Supreme Court has deduced the following principles :- ‚42.1. The ‚onus of proof‛ of parity in the duties and responsibilities of the subject post with the reference post under the principle of ‚equal pay for equal work‛ lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference post (see- Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188, U.T. Chandigarh, Admn. v. ManjuMathur, (2011) 2 SCC 452 : (2011) 1 SCC (L&S) 348], SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122 and National Aluminium Co. Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756).

42.2. The mere fact that the subject post occupied by the claimant is in a ‚different department‛ vis-à-vis the reference post does not have any bearing on the determination of a claim under the principle of ‚equal pay for equal work‛. Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different Government (see Randhir Singh v. Union of India, (1982) 1 SCC 618 and D.S. Nakara v. Union of India, (1983) 1 SCC 3050). departments

42.3. The principle of ‚equal pay for equal work‛, applies to cases of unequal scales of pay, based on no classification or irrational classification (see- Randhir Singh v. Union of India, (1982) 1 SCC 618). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see -Federation of All India Customs and Central Excise Stenographers v. Union Ram 3 Kanojia v. All Medical Sciences, (1989) 2 SCC 235, GrihKalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619] and S.C. Chandra case [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279). 91], Mewa SCC Institute India, (1988) India

42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of ‚equal pay for equal work‛ (see - Randhir Singh v. Union of India, Haryana v. Haryana Civil Secretariat Personal Staff Assn., (2002) 6 SCC 72). Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature. 618, and (1982) State SCC 1

42.5. In determining equality of functions and responsibilities under the principle of ‚equal pay for equal work‛, it is necessary to keep in mind that the duties of the two posts should be India Central Customs differentiation of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, legitimate and permissible (see –Federation of Excise All Stenographers v. Union of India, (1988) 3 SCC 91 and SBI v. M.R. Ganesh Babu, (2002) 4 SCC 556). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of ‚equal pay for U.P. v. J.P. Chaurasia, (1989) 1 SCC 121) and GrihKalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619. (see -State work‛

42.6. For placement in a regular pay scale, the claimant has to be a regular appointee. The claimant should have been selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188).

42.7. Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay scales. Such as — ‚selection grade‛, in the same post. But this difference must emerge out of a legitimate foundation, such as — merit, or seniority, or some other relevant criteria (see -State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121).

42.8. If the qualifications for recruitment to the subject post vis-à-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable (see Mewa Ram Kanojia v. All Medical Sciences, (1989) 2 SCC 235) and State of W.B. v. Tarun K. Roy, (2004) 1 SCC 347.In such a case the principle of ‚equal pay for equal work‛ cannot be invoked. Institute India

42.9. The reference post with which parity is claimed under the principle of ‚equal pay for equal work‛ has to be at the same hierarchy in the service as the subject post. Pay scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey, (2000) 8 SCC 580] and Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666.

42.10. A comparison between the subject post and the reference post under the principle of ‚equal pay for equal work‛ cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned