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CASE NO.: Appeal (civil) 2906-2907  of  2001

PETITIONER: ANIL RATAN SARKAR & ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT:       20/04/2001

BENCH: A.P. Misra & Umesh C. Banerjee

JUDGMENT:

BANERJEE,J. L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

   The  issue  pertaining to fixation of pay scale,  though irksome  continues to be placed before this Court from  time to  time  and this matter is no  exception.   Significantly, however,  one  ought  to note at this stage  only  that  the matter  in  issue  has already traveled to this  Court  once before  but  the issue still persists  surprisingly  though but  this  has turned out to be the trend of  litigation  in this country.

   The  fact  situation of the matter in issue involve  the Physical  Instructors and Graduate Laboratory Instructors in the employment of different non-governmental colleges in the State  of West Bengal:  The principal issue for adjudication presently  however is whether the scale of pay given to  the petitioners  is  in accordance with the writ of Mandamus  as issued  by  the  learned single Judge of the  Calcutta  High Court  and  as confirmed by the Appellate Bench of the  High Court  and  stands accepted by this Court in terms  of  this Courts judgment and order dated 26th July, 1994.

   Before  adverting to the issue as noticed above and  the rival  contentions  as  raised  therefor,  a  brief  factual backdrop would be convenient at this stage.

   The  appellants  are  Science   Graduates  of  different universities  in  the  country and have  been  appointed  as Laboratory  Assistants in colleges and in addition to  their normal  duties,  the appellants were supposed to assist  the teachers  and help the students in practical classes, impart instructions  to  the students in practical classes  and  to perform  demonstration  work  including preparation  of  the lesson  units  in the practical classes.  According  to  the appellants  these Laboratory Assistants were all along being treated  as teaching staff and pay and allowances  including the  Government  share of Dearness Allowances were  paid  to them  until  the issuance of the government order  No.288

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Education  (CS)  dated 21st March, 1969  wherein  Laboratory Assistants   of  non-government   affiliated  colleges  were treated as members of the non-teaching staff.  The effect of such  re-designation  had  a direct impact  as  regards  the payment  of Dearness Allowances and obviously the same being prejudicial   to   the    interest    of   the   appellants, representations  followed against the Government Order  but, however, to no effect.  Representations, were made since the withdrawal  of teaching status was otherwise  discriminatory as  the  Graduate  Laboratory Assistants  had  to  discharge teaching  function as well, apart from the normal conduct of the Laboratory work.

   The  factual  score depict that subsequently in  August, 1983  the  State  Government   redesignated  the  Laboratory Assistants  as Laboratory Instructors - It is on this  score that  Mr.   Ganguli,  learned senior  Counsel  appearing  in support  of  the  appeals very  strongly  criticised.   This change  of  nomenclature  according  to  him  was  otherwise meaningless as there was neither any conferment of status of teachers  or the grant of any pay scale consistent with  the teaching status.  The Government notification was attributed to be a mischievous deception and a hoax - a rather strong criticism:   the question therefore arises whether there was any  justification  of such an attribute to  the  government notification  dated  10th  August, 1983:  a  short  question consequently,  thus  what was the necessity for issuance of such  an order  would the change of nomenclature assist  in any  way the Graduate Laboratory Assistants?  A bare perusal of  the  notification  does  not  however  give  any  reason whatsoever  as  to  the  necessity of  its  issuance    the notification on the contrary makes it clear that there would be no enhancement of pay as also the status, as non-teaching staff  would  remain  unchanged:   It   is  only  the   word Assistant  was  replaced by the word Instructors    but does  that  confer  any  material  benefit  to  the  persons concerned?   The  answer  obviously  cannot but  be  in  the negative.   It is on this background and upon perusal of the notification  Mr.   Gangulis criticism seems to  be  rather apposite  though  couched in a very strong language  but  by reason  of the fact - situation of the matter in issue   if we  may  say so, justifiably so.  Incidentally, be it  noted that  Graduate  Laboratory Assistants working in  government colleges  have  been  given the status and  designations  of Demonstrators  and have been accepted as members of teaching staff.   According  to the appellants they  possess  similar qualifications,  experience  etc.   but  even  though  being similarly  circumstanced, the Graduate Laboratory Assistants of  sponsored  and non-government private colleges  of  West Bengal  stands discriminated against the Graduate Laboratory Assistants  of  Government  colleges in  West  Bengal.   The earlier writ petition which stands concluded by this Courts order  dated  26th  July, 1994 contained  detailed  list  of University  Acts  and Statutes wherein teachers have  been defined to include the Instructors.

   Needless to place on record that by reason of the act of discrimination  and having failed to obtain any redress from the  State  respondents these appellants moved  the  learned single  Judge  of the Calcutta High Court for issuance of  a writ of Mandamus to treat the Graduate Laboratory Assistants as  teaching  staff  as  per  the  definition  contained  in different  University  Act and also to give them a scale  of pay  equivalent  to  that  of Physical  Instructors.   By  a judgment  and order dated 29th July, 1987 the learned single

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Judge issued a writ of Mandamus upon a detailed judgment the operative portion whereof is set out hereinbelow:-

   The  Rule accordingly is made absolute and the State Respondents  are hereby commanded by the issuance of a  writ in  the nature of Mandamus to treat the Graduate  Laboratory Assistants who have already been redesignated at Laboratory Instructors as teaching staff and to pay them in accordance with  the existing scale of pay prescribed for the  Physical Instructors  with  effect  from 10th August, 1983  with  all arrears.

   The  appeal  taken  therefrom by  the  State  Government resulted in confirmation of the order by the judgment of the Appellate  Bench  dated  May 15, 1992.  The  State  of  West Bengal,  however, being aggrieved and dissatisfied with  the judgment  and order of the Appellate Bench of the High Court moved  a  Special  Leave Petition under Article 136  of  the Constitution  before  this Court and this Court  finally  on 26th  July,  1994  refused to interfere with the  order  and disposed  of  the  matter with a speaking  order.   Relevant extracts of the same however are set out herein below:-

   .the  Division  Bench of the High Court  upheld  the findings of the learned Single Judge.

   We  have heard learned counsel for the parties.  We  see no   ground  to  interfere  with   the  reasoning  and   the conclusions reached by the learned single Judge as upheld by the  Division Bench of the High Court.  We are, however,  of the  view  that  the  respondents-petitioners  be  paid  the revised  scale  of pay, as directed by the High Court,  with effect  from August 1, 1987 instead of August 10, 1983.  Mr. A.K.  Ganguli, learned counsel appearing for the respondents has  very fairly stated that his clients are not asking  for the  pay-scale of Lecturer.  According to him, the pay-scale of   Physical   Instructors  is   equivalent  to   that   of Demonstrators and that is the pay-scale to which his clients are entitled to in terms of the judgment of the High Court.

   The  arrears  shall  be paid to the respondents  in  two installments,  first  by  the end of February 1995  and  the second  installment  by  August  31, 1995.   The  appeal  is dismissed with the above modifications.  No costs.

   Significantly another class of Instructors also employed in non- government colleges were called Physical Instructors and prior to 2nd July, 1984 the Physical Instructors were of two  categories inso far as the scale of pay was  concerned, to  wit,  (i)  those who had their  qualification  as  Post- Graduate  Diploma  or  certificate or a degree  in  Physical Education  would  be  entitled to pay scale  of  Rs.550-900; (ii)  those  who  did not possess the  above  qualifications Rs.425-700.

   Subsequently,  however,  by reason of University  Grants Commissions  recommendations  the State Government  by  its Order No.888 dated 2nd July, 1984 prescribed in the teaching category  only one scale of pay for Physical Instructors and also  with  a direction that in future all  appointments  to Physical Instructors would have to be made from those having the qualification of Post-Graduate Diploma or certificate or a  degree  in  Physical  Education.   The  Government  Order

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noticed  above in this paragraph revised the existing  scale of  pay  to  one composite scale of pay of  Rs.700-1600  for Physical  Instructors in the teaching category and a perusal of  the  said  order does not leave any manner of  doubt  as regards  introduction of only one scale of pay for  Physical Instructors and with a teaching status.

   Incidentally,  during the pendency of the earlier appeal before  the  High  Court the Government by an  order  No.579 dated  2.5.88  directed  affiliating  Universities  to  take necessary  action  for conferment of teaching status to  the Graduate  Laboratory  Instructors of non-government  college and  in fact by a subsequent Government Order No.1039  dated 27th  July,  1988 the Graduate Laboratory  Instructors  were declared  as members of the teaching staff though,  however, without  granting  any  higher scale of pay   obviously  in accordance  with  the  writ of Mandamus issued by  the  High Court  as noticed herein before.  Incidentally the pay scale of  Physical  Instructors  having the  teaching  status  was revised  by Government Order No.517 dated 30.4.1990 from Rs. 700-1600 to 2200-4000 with effect from 1986.

   It  is at this juncture a further factual recapitulation may  be  convenient to the effect that this Court  vide  its judgment  dated  26th July, 1994 upheld the  reasonings  and conclusions  reached by the learned Single Judge as affirmed by  the Division Bench but modified the relief regarding the date  of  introduction of the revised scale of pay  to  wit: from  1st August, 1987 instead of 10th August, 1983.  It was never  contended by the State (at least as appears from  the records  produced  before  this  Court)  that  the  Physical Instructors,  holding  teaching  status, had more  than  one scale  of  pay  after  2nd  July,  1984.   (Neither  such  a contention could be raised since there was only one scale of pay  for Physical Instructors having teaching status).  This aspect  of  the matter however been very strongly denied  by Mr.   Reddy,  the learned Senior Counsel appearing  for  the State  Government.  Mr.  Reddy contended that there are  two definite   classes  of  Physical   Instructors  one   having Post-graduate diploma or certificate or a degree in Physical Education  and  the  second being  under-qualified  Physical Instructors  having  a pay-scale of Rs.425-700 which  stands recognised  even  in the Government Order No.589 dated  25th April,  1980.   Mr.  Reddy contended that it has never  been revoked by a subsequent Government Order:  whereas qualified Physical Instructors allowed the scale of pay of Rs.700-1600 with  effect  from  1.4.1980, the  under-qualified  Physical Instructors  pay-scale remained at 425-700 on the same date until   it   was  revised  in   January,   1986   when   the under-qualified Physical Instructors were given pay-scale of Rs.1390-2970  in  terms  of ROPA Rules,  1996.   Mr.   Reddy contended  that  the qualified Physical  Instructors,  since 1.1.1996,  in terms of the UGC pay scale, has been given the pay scale of Rs.8000-13500 and contended rather strongly the existence  of  a different scale of pay for  under-qualified Physical Instructors - a sharp difference thus being created between under-qualified and qualified Physical Instructors the latter being governed by the UGC scale and the former in terms  of ROPA, Rules of West Bengal.  Mr.  Reddy  contended that  UGC  pay  scale  has been offered  to  those  Physical Instructors   having  the   qualification  of  Post-Graduate Diploma/certificate  or  degree in Physical Education   Mr. Reddy  emphasised further that existence of under- qualified Physical Instructors with a different scale of pay is hidden in  the  recording  effected by this Court earlier  and  for

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convenience  sake is recapitulated once again herein  below: The earlier order contained as below:-

   Mr.   AK  Ganguli,  learned counsel appearing  for  the respondents  has very fairly stated that his clients are not asking for the pay-scale of Lecturer.  According to him, the pay  scale  of  Physical Instructors is equivalent  that  of Demonstrators  i.e.   pay  scale to which  his  clients  are entitled  to  in  terms of the judgment of  the  Hon.   High Court.

                                (Emphasis supplied)

   It  is  on  this  score Mr.  Reddy  contended  that  the statement  of  the learned senior counsel appearing for  the Laboratory  Instructors made at the time when the pay  scale of the Physical Instructor is equivalent to that of Lecturer and pay scale of Demonstrator is not identical with Physical Instructor  (qualified).   Thus  the observation  cannot  be followed  in  respect  of  graduate  Laboratory  Instructors equating  with  either  of  the   two  categories.   In  the implementation  of the UGC pay scale of 1973 and onwards, it is  mandatory that the teaching post which were in existence prior  to 1.1.1973 would only come under the purview of  UGC scale of pay and others under the State rules.

   Mr.   Reddy  contended  that  Physical  Instructors  who possess     the     qualifications      of     Post-graduate diploma/certificate  or  degree in Physical  Education  were given  the  scale of pay of Rs.700-1600/- with  effect  from 1.4.1980  to  31.12.1985.  The said scale has  been  further revised  to Rs.2200- 4000/- with effect from 1.1.1986  which is  further  revised by UGC to Rs.8000-13,500/-  which  were also  the scales of pay of lecturers and it was specifically stated  on  behalf  of the employees  through  their  senior counsel  that  they  are  not asking for the  pay  scale  of lecturer which is Rs.2200- 4000/- at the material time.

   It  has been further stated that the observation made by the  learned  senior  counsel  on  behalf  of  the  Graduate Laboratory  Instructors in this Court is followed in toto by the State Government in allowing the scale of Rs.1390-2970/- taking   into  consideration  their   teaching  status   and qualifications.

   While  the submissions of Mr.  Reddy seems to be  rather attractive  at the first blush viz.-a-viz.  the statement of Mr.  Ganguli before this Court on the earlier occasion.  But the  factum of existence of two separate classes of Physical Instructors,  one  being a qualified and the other  being  a non-  qualified  Physical  Instructors   shall  have  to  be considered  and  noticed with certain amount of  caution  in view  of  the factual matrix of the matter in issue and  the records  as is available even in this Court.  Some record of proceedings  may  be  useful  to  be  referred  to  at  this juncture.

   (i)  The order of the learned single Judge dealing  with the  present writ petition before the High Court recorded as@@                   JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ follows:@@ JJJJJJJJ

   on  24.6.1997  Mr.   Bihani  prayed for  time  to  file affidavit  affirmed  by Secretary to the Government of  West

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Bengal,  the  Higher Education Department in qualifying  the said   position  regarding  two   pay  scales  for  Physical Instructors.    Referring  the  said   two   pay-scales   no notification  or order could be produced.  On the  contrary, only  one  pay-scale  has  been   mentioned  in  the  report published by the Higher Education Department

   (ii)  Subsequently  on  16th January, 1997  the  learned Single Judge further recorded the following:@@                      JJJJJJJJJJJJJJJJJJJJJJJ

   .under such circumstances, it is not clear on what basis  the  said  affidavit has been affirmed  by  the  said Kalyan   Kumar   Mandal,  Assistant   Director   of   Public Instruction  that  there  is another  category  of  Physical Instructor with B.A./B.Sc./B.Com.  qualification n the scale of pay Rs.1390-2970.

   Accordingly,  the  said Kalyan Kumar  Mandal,  Assistant Director  of Public Instruction is directed tobe  personally present  before the Court on 22.1.1997 with all records  and explain  on what basis he has filed such affidavit  affirmed on 31.8.95 mentioning two categories of Physical Instructor. Learned  Advocate for the State respondent is also  directed to produce all records on the next date of hearing.

   Be  it  noted that State of West Bengal sought  time  to produce  relevant government records on more occasions  than one  as directed but no such documents were produced even by reason  wherefor the learned Single Judge while disposing of the Writ Petition on 27th March, 1998 was pleased to observe in   no   uncertain  terms   about  the  non-production   of documentary evidence in support of the contentions as raised and  emphasised pertaining to the existence of qualified and under-qualified  Physical Instructors.  Similar  contentions were  raised  by  the State Government before  the  Division Bench  of the High Court but without however any documentary support  and  when  this  Court   heard  the  Special  Leave Petitions  after  return  of notices and by  reason  of  the specific  contentions of the appellants herein negating  the existence  of  two  groups  of  Physical  Instructors.   The learned  counsel  for  the respondents wanted some  time  to obtain  instructions  and to file  supplementary  affidavit. This  Court  further granted 3 weeks time from the date  of the  order  to  file such an affidavit and  the  matter  was directed  to be li sted after three weeks (vide order  dated April  10, 2000).  (iii) The records depict that this  Court by a further order dated 18th August, 2000 offered a further opportunity  and the order seems to be of some consequences, by  reason therefor, the said order is set out in extenso as below:-

   Mr.  A.K.  Ganguli, learned Senior Counsel appearing on behalf  of the petitioners has taken us through the  earlier judgment  of  the learned Single Judge dated  29.7.87  (page No.96)  and of the Division Bench dated 15.5.1992 (page  99) and  of  this  Court dated 26.7.94 (at page  112)  and  also pointed  out that by the Government Order dated 2.7.84 (page 345),  Physical Instructors have been brought into a  single scale  of  Rs.700-1600  (which  has since  been  revised  as Rs.2200-4000)  and that the petitioners are entitled to  the said  scale  without any distinction between  Graduates  and Non-  Graduates inasmuch as so far as Physical  Instructors,

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were  concerned,  the above order of 1984 removed  any  such distinction.

   On  the  other  hand, Sri KK Venugopal,  learned  senior counsel  appearing on behalf of the respondents has referred us to an affidavit filed by the Government in the High Court and  pointed  out that even for Physical Instructors,  there was  still distinction between these two categories.  It was however,  pointed  out to learned senior counsel  that  this statement in the counter affidavit, prima facie runs counter to  the  earlier  order  of the  Government  dated  2.7.1984 whereby  the  distinction  between  the  Graduates  Physical Instructors  and Non-Graduate Physical Instructors had  been removed.  At this stage, Sri KK Venugopal says that he would file  all  Rules/Circulars/Orders  which relate to  the  pay scale of Physical Instructors and clarify the position.

   The  State  Government may file by way of  an  affidavit referring  to  the Rules/Orders/Circulars if they are  still maintaining   a  difference  in   scales  between   Physical Instructors in regard to Graduate and Non-Graduates.

   The  records  of the Government Order however  have  not seen  the light of the day even before this Court instead of such  specific  directions:   is  it   a  mere  omission   - unfortunately  the  contextual  facts depict  it  otherwise. (iv)  As late as February 28, 2001 this Court again directed as under:-

   Mr.   V.R.  Reddy, learned senior counsel appearing for the  respondents  wants time to place before the  Court  the categorisation  in  two classes of the Physical  Instructors referred  at page 343 continued even subsequently  including the  revisional  pay  scale  hence he wants to  place  in  a tabular  form the second category on which he wants to place the  present  petitioners.   While doing so he  should  also refer  to  relevant  rules and G.Os.  under which  the  same continue.   He  seeks  two weeks time for the  same.   List these matters after two weeks as part- heard when this Bench sits next.

   On  this  score, a chart has been produced in  Court  on 20th March, 2001 which however cannot by any stretch be said to  be in support of the contention of the State that  there were existing two different grades and scales of pay amongst Physical  Instructors  one being to be a qualified  Physical Instructor  and other being unqualified Physical Instructor. Significantly   the  annual  report  as  published  by   the Education  Department  of the State Government  unmistakably record  the  existence of one grade of  Physical  Instructor under  paragraph  8.16.   The   annual  report  details  out teachers of Government Colleges in the manner as below:

8.16    Teachers of Government Colleges S.No.    Category of teachers     Pay scale

(Basic)                             w.e.f. 1.1.1986

               5.                Demonstrator Rs.1740-3000                 4.                Physical Instructor@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ                 Rs.2200-4000 3.                Lecturer@@                              JJJJJJJJJJJJJJJJJJJJJJJJJJ                 Rs.2200-4000                 2.                Professor/Vice Principal

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               Rs.3700-5700                                                                                                            (Grade-II)                 1.                Principal                 Rs.4500-7300

   Paragraph   8.2.1  also  records   the  details  of  the Administration of Non-Government Colleges as below:

   The  teachers of the non-Government Colleges are of  the following categories (basic):-@@           JJJJJJJJJJJJJJJJJJJJ

                   1.            Laboratory Instructor Rs.1390-2970 2. Demonstrator@@ IIIIIIIIIIIIIJJJJJJJJJJJJJJJ 3.            Physical Instructor                              as in Government Colleges 4.            Lecturer@@                     JJJJJJJJJJJJJJJJJJJJJJ 5. Principal

   This itself however negates the contentions as raised by the  State.  Physical Instructors in non-Government Colleges are  termed  as  teachers  with scale  of  pay  Rs.1390-2970 whereas  Physical  Instructors were also termed as  teachers and  scale  of pay appears to be similar as  in  Government Colleges  i.e.  Rs.2200-4000.  Secondly in paragraph  8.2.4 revised  pay  scale of the non-teaching posts (Group  B  pay scale)  have been noted to be Rs.1390-2970.  It thus  leaves no  manner of doubt that whereas the petitioners were  shown as  teachers  of non-government colleges they were  in  fact granted  the  scale  of  pay  applicable  only  to  Group  B employees belonging to non-teaching staff and thus granted a non-teaching scale to the petitioners.

   It  is  on this score, however, Mr.   Ganguli  contended rather  emphatically  that the High Court fell into a  great error  in accepting the contention of having two classes  of Physical  Instructors  without  any factual  or  documentary support.   The criticism of Mr.  Ganguli seems to have  some force since there was in fact a total failure on the part of the  respondents to produce any documentary support in  tune with the submission as noticed above - Obviously the records apparently  runs  counter to the submission and findings  as recorded by the High Court.

   The  purport of the order of this Court is not very  far to  seek:  there is a definite approval of the reasoning and conclusion  as reached by the learned Single Judge as upheld by  the Division Bench of the High Court and the  alteration is  only  from  1983 to 1987.  Reliance  on  Mr.   Gangulis statement  as  recorded in the earlier order of  this  Court that  his  clients are not asking for pay scale of  Lecturer and  would be happy if the pay scale of Physical Instructors are  made  available  to  them does  not  really  alter  the situation.  Admittedly, Lecturers are a rank higher than the Physical  Instructors  as the Professor/Vice Principal is  a rank  higher  than the Lecturer and the Principal two  ranks higher than the Lecturers.

   It  is  however in terms of the order of this  Court  as noticed   herein  before,  the   State  Government  on  26th December,  1994 has issued a circular obviously in  proposed compliance  with  the order of this Court.  Let  us  however

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examine  the circular and assess the situation ourselves  as to  the compliance of the earlier order of this Court.   The circular reads as below:-

   In  the circumstances, the Governor is pleased to order that  the scale of pay in respect of all graduate laboratory instructors  of  non-Government colleges may be  revised  to Rs.1300-45-1615-55-2056-66- 2445-2970/- with effect from 1st August, 1987 and the arrears involved on account of revision of their scale of pay paid in the manner as indicated above.

   The  Governor  is  further  pleased to  order  that  the graduate  laboratory instructors of Non- government colleges shall  continue to enjoy teaching status as given to them in GO No.1030- Edn.CS dated 27.7.1988.

   This  circular  however  stands  challenged  before  the learned  single Judge who was pleased to quash the same upon acceptance  of  the contentions of the writ petitioners  the appellants  herein.  The learned Single Judge  categorically recorded  that  the  petitioners being  Graduate  Laboratory Instructors,  question of further classifying them does  not and  cannot arise and upon reliance of the annual report  as noticed above quashed and set aside the circular.  The State Government however being aggrieved went before the Appellate Court and the Appellate Bench however allowed the appeal and opined  that the Government Order dated 26th December,  1994 cannot  be said to be arbitrary or contrary to the  decision of  this  Court.   Since it is clearly stated  therein  that Graduate  Laboratory Instructors shall continue to enjoy the teaching  status.   The High Court, however, has  failed  to appreciate the role of Physical Instructors in the matter of fixation  of  pay scale in terms of the order of this  Court and  it is on this count a definite statement has been  made even  before this Bench that there are existing two definite classes  of  Physical  Instructors one being  qualified  and another  being unqualified, but there is no factual  support therefor.   Surprisingly,  the  basis of the order  of  this Court  has  not been delved in to by the High Court and  the High Court thus clearly fell into an error.  Needless to say that  in  the  event  there  was  some  documentary  support viz.-a-viz.   the  stand of the respondent-State as  regards the existence of two definite Grades of Physical Instructors obviously  the  Government  Order issued in  December,  1994 could  not have been found fault with  since the same would have  been in consonance with the order of this Court.   But there  being  no factual support therefor, we are not  in  a position  to record our concurrence with the submissions  of Mr.   Reddy as regards the justifiability of making Group  B salary available even after conferment of teaching status as upheld  by  the  Appellate  Bench of the  High  Court.   The conferment  of status as a teacher runs counter to  fixation of  pay  scale  of  Group B employees since  all  the  other teachers  of the Government and non-government colleges  are placed  in  the  category  of teachers.   A  teacher  cannot possibly be allowed a pay scale of a non-teaching post:  The same  is  contradiction  in  terms and we  need  not  dilate thereon.  The criteria of fixation of pay scale is dependant upon  the  placement of the person concerned  in the  event the placement is in a teaching post obviously one expects to get a pay-scale fixed as a teacher and not as a non-teaching member  of  the  staff.  Apparently the High Court  has  not delved  with the issue in this perspective and thus  clearly fell  into  an  error  in  categorising  a  teacher  with  a non-teaching pay-scale.  The circular clearly authorises the

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Graduate  Laboratory Instructors of non-Government  colleges to  continue  to  have  the teaching status  but  decry  the financial  benefits  therefor!   Would the same  be  not  an arbitrary  exercise  of powers or can it by any  stretch  be suggested  to  be otherwise rational  and  indiscriminatory. This  Court at an earlier occasion unequivocally upheld  the reasonings  of the learned Single Judge in the earlier  writ petition  as accepted by the Appellate Bench and on the wake of  such a finding of this Court question of decrying a  pay scale  which  is otherwise available to another teacher  (in this case the Physical Instructor) does not and cannot arise more  so  by  reason  of the earlier order  of  this  Court. Administrative  ipsi dixit cannot infiltrate on to an  arena which stands covered by judicial orders.

   On  the wake of the aforesaid these appeals succeed  and are  thus  allowed, the order of the Appellate Bench of  the High  Court stands set aside and quashed.  The order of  the learned  Single  Judge stands restored.  The entitlement  by reason of the revision be made available from August 1, 1987 as directed by this Court in the earlier judgment dated 26th July, 1994.  There shall be no order as to costs.