REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                    OF 2009 (Arising out of S.L.P.(C) No. 25682 of 2008)

State of Madhya Pradesh & others … Appellants

Versus

Ramesh Chandra Bajpai … Respondents

JUDGMENT

S.B. SINHA, J.

1. The  State  of  Madhya  Pradesh  is  before  us  aggrieved  by  and  

dissatisfied with the judgment and order dated 4.1.2008 passed by a Division  

Bench of the High Court of Madhya Pradesh, Indore Bench at Indore in Writ  

Appeal No.201 of 2006 whereby and whereunder the appeal preferred by the  

appellant  herein from a judgment and order dated 3.11.2004 passed by a  

learned Single Judge of the said High Court in Writ Petition No.4005/2003,  

was dismissed.

2. The core question which arises for consideration before us is as to  

whether  the  respondent  herein  who  is  working  as  Physical  Training

Instructor in Government Ayurvedic College is entitled to claim parity of  

pay with the teachers who have been granted UGC scale of pay.

3. The  respondent  was  appointed  as  Physical  Training  Instructor  in  

Government Ayurvedic College,  Ujjain by an offer of appointment dated  

18.1.1973.   He  filed  O.A.  No.  907 of  1998 before  the  Madhya  Pradesh  

Administrative Tribunal, Indore Bench (for short, “the Tribunal”) with the  

prayer that the non-applicants in the O.A. (the petitioners herein) be directed  

to treat him as teacher and fix his pay in the pay scale prescribed for that  

post along with the benefit of senior scale and also give him the UGC pay  

scale (Rs.3,700-5,700) w.e.f.1.1.1986.   

In the counter affidavit filed on behalf of the non-applicants, it was  

pleaded that UGC scales have not been made applicable so far as the staff of  

Ayurvedic Colleges are concerned and that there was no sanctioned post of  

Sports Officer in the college for which the pay scale of Rs.3,700-5,700 was  

recommended and in that view of the matter the applicant could not have  

been  treated  at  par  with  the  teachers  who  are  employed  in  the  School  

Education Department.

4. The Tribunal dismissed the application of the respondent observing  

that the applicant having not been holding the post of Sports Officer and  

having not been working in the Government College administered by the  

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Department of Higher Education,  he was not  entitled  to any relief.   The  

Tribunal also held that Physical Training Instructors cannot be treated at par  

with the teachers because the Government has not issued any order equating  

the said two posts.   

Soon  thereafter,  the  respondent  filed  an  application  (M.A.  

No.277/1998)  for  review  of  the  order  dated  16.9.1998  vide  which  the  

Tribunal has dismissed the O.A.   

5. During the pendency of that application, the Tribunal was abolished  

and  all  the  pending  matters  were  transferred  to  the  High  Court.   The  

respondent’s case was then registered as Writ Petition No.4005/2003.   

6. A learned single judge of the High Court allowed the writ  petition  

relying upon the judgment of this Court in  P.S. Ramamohana Rao v.  A.P.  

Agricultural  University  and  another [1997  (8)  SCC  350]  and  the  order  

passed in Writ Petition No. 5438 of 2000 directing that the pay of the writ  

petitioner be fixed in the scale prescribed for the post of teacher.   

The  Division  Bench  dismissed  the  writ  appeal  preferred  by  the  

petitioners primarily on the ground that a large number of Physical Training  

Instructors have already been granted U.G.C. scale and an order declining  

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relief to the respondent would result in discrimination.  The Division Bench  

also referred to the judgment in P.S. Ramamohana Rao (supra) and held that  

the respondent  cannot be deprived of  the benefit  of  pay scale  which has  

already  been  extended  to  other  similarly  situated  Physical  Training  

Instructors employed in the Ayurvedic Colleges.

7. Learned counsel for the appellants referred to the provisions contained  

in  the  Madhya  Pradesh  (Indian  Systems  of  Medicine  and  Homeopathy)  

Class III Ministerial Services Recruitment Rules, 1987 (hereinafter referred  

to  as  “the  1987  Rules”)  and  the  Madhya  Pradesh  Educational  Service  

(Collegiate Branch) Recruitment Rules, 1990 (hereinafter referred to as “the  

1990 Rules”) to contend that recruitment to the posts of Physical Training  

Instructors and Sports Officers are regulated by different sets of rules.  It  

was argued that holders of the two posts cannot be treated at par for the  

purpose of fixation of pay in the UGC scale.  The learned counsel submitted  

that the High Court committed serious error by relying upon the ratio of the  

judgment in P.S. Ramamohana Rao (supra) for the purpose of granting relief  

to the respondent because the only question considered therein was whether  

having regard to the nature of duties performed by the appellant therein, a  

person holding the post of Physical Director in Andhra Pradesh Agricultural  

University  was  entitled  to  be  treated  as  teacher  within  the  meaning  of  

Section 2(n) of the A.P. Agricultural University Act,  1963 (for short ‘the  

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1963 Act’) and was, thus, entitled to continue in service till the age of 60  

years.  Learned counsel stated that benefit of the UGC scales of pay have not  

been  extended  to  the  employees  of  Ayurvedic  Colleges  including  the  

members of teaching staff and those governed by the 1987 Rules.  On the  

issue of grant of UGC scale of pay to other Physical Training Instructors,  

learned counsel invited our attention to para 3(iii) of the rejoinder affidavit,  

which reads as under:-

“In reply it is submitted that it is correct that on the  basis of the orders passed by the High Court some  of  the  Physical  Training  Instructors  have  been  given UGC pay scales but this has been done in  compliance of the orders passed by the High Court  and  the  same  could  not  be  challenged  on  the  ground that the appeal had become time barred and  orders  could  not  be  challenged  because  of  the  advise received at the relevant time.  Subsequently,  it  has  been  found  that  erroneously  Physical  Training Instructors of Engineering,  Medical  and  Ayurvedic  Colleges  have  been  given  UGC  Pay  Scales even though the Administrators, Lecturers,  Professors and Principal  of Engineering,  Medical  and Ayurvedic Colleges are not getting the UGC  pay scales.”

8. Learned counsel for the respondent argued that after having accepted  

and implemented the orders passed by the Tribunal and the High Court in  

the cases of other Physical Training Instructors for grant of UGC scale of  

pay, it is not open to the appellants to discriminate the respondent by relying  

upon the provisions of the 1987 Rules.  He invited the court’s attention to an  

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order  dated  24.5.2004  to  show  that  the  Physical  Training  Instructors  

appointed in Medical Colleges of the State have been granted the benefit of  

UGC scale of pay and submitted that the High Court did not commit any  

error  by directing the petitioners  to fix the respondent’s pay in the UGC  

scale.  Learned counsel pointed out that as late as on 24.4.2004, the State  

Government  has  extended  the  benefit  of  UGC  scale  of  pay  to  Physical  

Training  Instructors  of  other  colleges  and  submitted  that  there  is  no  

rationality or reason for denying the same benefit to the respondent.

9. It is not in dispute that Ayurvedic Colleges situated in the State of  

Madhya  Pradesh  are  under  the  control  of  the  Department  of  Medical  

Education.  It is also not in dispute that at present recruitment to the post of  

Physical  Training Instructor is regulated by the 1987 Rules.   In terms of  

rules 5, 6 and 8 read with the relevant entries of Schedules I, II and III of the  

1987 Rules, the post of Physical Training Instructor is categorized as Class  

III  Non-Ministerial  under  the  heading  ‘Establishment  of  Divisional  

Organization’ and the same is required to be filled 100 per cent by direct  

recruitment from amongst the persons possessing the requisite educational  

qualification of Diploma in Physical Training.    

The  post  of  Sports  Officer  finds  mention  in  the  four  Schedules  

appended to the 1990 Rules.  By virtue of Rule 8 read with the relevant  

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entries of Schedules II and III of the 1990 Rules, the post of Sports Officer is  

required to be filled as under:  

90% by direct recruitment; and 10% by promotion from amongst the  

Assistant Sports Officers.   

10. The educational qualification prescribed for direct recruitment to the  

post of Sports Officer is a Post Graduate Degree in physical education with  

at  least  55%  marks  and  at  the  degree  level  of  physical  education,  the  

percentage of total marks obtained should not be less than 50.

11. A comparison of the provisions of the 1987 Rules and 1990 Rules  

clearly establish that they not only deal with different classes of employees  

but the educational qualifications and scales of pay prescribed for the posts  

enumerated in Schedules of two sets of Rules are entirely different.  While  

the  1987  Rules  regulate  recruitment  to  Class  III  Ministerial  and  Non-

Ministerial posts in various colleges imparting education in Indian System of  

Medicine  including  Ayurveda,  the  1990  rules  regulate  recruitment  to  

different posts in the Educational Service (Collegiate Branch) including that  

of Sports Officer.   

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12. The post of ‘teacher’ does not find place either in the 1987 Rules or in  

the 1990 Rules.   We have made a mention of this  fact  only because the  

respondent has claimed parity in the matter of pay scale with teachers.   

13. In paragraph 6 of the impugned order, the Division Bench of the High  

Court  observed  that  the  rules  governing  and  regulating  the  service  of  

respondent  make  a  distinction  between  Physical  Training  Instructor  and  

teacher in the matter of status and pay scale, but proceeded to sustain the  

direction given by the learned single judge mainly on the premise that the  

orders passed in the cases of other Physical Training Instructors have not  

been assailed.   

The Division Bench also relied upon the ratio  of  judgment  of  this  

Court in  Ramamohana Rao (supra) case and observed that the nature and  

duties of the Physical Training Instructors are at par with those of teachers.

14. In our view, the approach adopted by the learned Single Judge and  

Division Bench is clearly erroneous.  

It is well settled that the doctrine of equal pay for equal work can be  

invoked only when the employees are similarly situated.  Similarity in the  

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designation or nature or quantum of work is not determinative of equality in  

the matter  of  pay scales.   The Court  has to consider  the factors  like the  

source and mode of recruitment/appointment,  qualifications,  the nature of  

work,  the  value  thereof,  responsibilities,  reliability,  experience,  

confidentiality, functional need, etc.  In other words, the equality clause can  

be invoked in the matter of pay scales only when there is wholesale identity  

between the holders of two posts.   

15. In Government of West Bengal vs. Tarun Kumar Roy [2004 (1) SCC  

347], a three-Judge Bench of this Court held as under:

“14. Article  14  read  with  Article  39(d)  of  the  Constitution  of  India  envisages  the  doctrine  of  equal  pay  for  equal  work.   The  said  doctrine,  however, does not contemplate that only because  the nature of the work is same, irrespective of an  educational  qualification  or  irrespective  of  their  source  of  recruitment  or  other  relevant  considerations  the  said  doctrine  would  be  automatically  applied.   The  holders  of  a  higher  educational  qualification  can  be  treated  as  a  separate  class.   Such classification,  it  is  trite,  is  reasonable.  Employees performing the similar job  but having different educational qualification can,  thus, be treated differently.”

16. The Court further opined that in a case where the employees do not  

hold  essential  educational  qualifications,  they  cannot  claim parity  in  the  

scale of pay on the ground of equality stating:

“30. The  respondents  are  merely  graduates  in  Science.  They do not have the requisite technical  

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qualification.   Only  because  they  are  graduates,  they cannot, in our opinion, claim equality with the  holders of diploma in Engineering.  If any relief is  granted  by  this  court  to  the  respondents  on  the  aforementioned,  ground,  the  same  will  be  in  contravention of the statutory rules.  It is trite that  this court even in exercise of its jurisdiction under  Article 142 of the Constitution of India would not  ordinarily grant  such a relief  which would be in  violation of a statutory provision.”

17. It is also well settled that Article 14 of the Constitution carries with it  

a  positive  concept  of  equality.   That  Article  cannot  be  invoked  for  

perpetuating illegality.  To put it differently, an illegal or wrong order passed  

in one case cannot be made the basis for compelling a public authority to  

pass similar order in other cases.  Even if the State implements an erroneous  

order passed by the court, it cannot be precluded from challenging similar  

order passed in another case, simply because appeal was not preferred in the  

earlier  case.   In  Government  of  West  Bengal (supra),  the  Court  upon  

noticing a large number of decisions, observed:-

“25. In  a  case  of  this  nature,  the  courts  are  required  to  determine the  issue having regard to  larger public interest.  It is one thing to say that in  a given case the High Court or this Court may not  exercise an equitable jurisdiction under Article 226  or Article 136 of the Constitution of India, but it is  another thing to say that  the courts  shall  grant a  relief  to  a  party  only  on  the  ground  that  a  contention which is otherwise valid would not be  raised on the ground that the same was not done in  earlier proceedings.

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xxx xxx xxx

28. In the aforementioned situation, the Division  Bench of the Calcutta High Court manifestly erred  in  refusing  to  consider  the  contentions  of  the  appellants  on their  own merit,  particularly,  when  the question as regards difference in the grant of  scale of pay on the ground of different educational  qualification  stands  concluded  by  a  judgment  of  this Court in Debdas Kumar.  If the judgment of  Debdas Kumar is to be followed a finding of fact  was required to be arrived at that they are similarly  situated to the case of Debdas Kumar which in turn  would mean that they are also holders of diploma  in  Engineering.   They  admittedly  being  not,  the  contention of the appellants could not be rejected.  Non-filing of an appeal, in any event, would not be  a ground for refusing to consider a matter  on its  own  merits  (See  State  of  Maharashtra  v.  Digambar).”

18. In State of Jharkhand and others v. Manshu Kumbhkar [2007 (8) SCC  

249], this Court held:-

“11. Reliance  by  the  High  Court  on  the  order  passed  in  Sanjay  Kumar  case  was  thoroughly  misconceived.   It  is  to  be  noted  that  LPA  was  dismissed on the ground of delay.  Even otherwise,  merely  because  mistake  had  been  committed  in  one case, there is no rational for perpetuating that  mistake,  even  when  the  same  is  legally  impermissible.”   

19. In Vice-Chancellor, M.D. University, Rohtak v. Jahan Singh [2007 (5)  

SCC 77], this Court observed:-

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“Even assuming the respondent and the said Shri  Taneja  were  similarly  situated,  we  may  observe  that Article 14 of the Constitution of India carried  with  it  a  positive  concept.   Article  14  of  the  Constitution  cannot  be  invoked,  for  perpetuating  illegality.” (See Kuldeep Singh v. Govt. of NCT of  Delhi [2006 (5) SCC 702].”

[See  also  Bihar  Public  Service  Commission  and  others v.  

Kamini and others [2007 (8) SCC 519].

20. In view of the aforementioned pronouncements, it must be held that  

the respondent cannot derive any benefit from the fact that in compliance of  

the orders passed by the Tribunal and High Court, the State Government  

extended the benefit of UGC scale of pay to some of the Physical Training  

Instructors of Ayurvedic and other colleges.  We may assume that what the  

learned counsel has stated with reference to order dated 24.4.2009 is correct,  

but as noticed hereinabove the illegality cannot be allowed to be perpetrated  

by invoking the doctrine of equal pay for equal work.

21. We may now notice the ratio of the decision in P.S. Ramamohana Rao  

(supra).  In that case, this Court was called upon to decide whether Physical  

Training Instructor in Andhra Pradesh Agricultural University was a teacher  

within the meaning of Section 2 (n) and was entitled to continue in service  

up to the age of 60 years.  The appellant in that case was employed as a  

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Physical  Director  in  Bapatla  Agricultural  College,  which  was  later  on  

transferred  to  Andhra  Pradesh  Agricultural  University.   The  University  

sought to retire the appellant on completion of 58 years.  The writ petition  

filed by him questioning the decision of the University was dismissed by the  

Division Bench of the High Court on the premise that Physical Director does  

not fall within the ambit of definition of `teacher’.  This Court referred to the  

relevant provisions of the Act and regulations framed thereunder including  

Section 2(n), which reads as under:-

“2(n)   ‘teacher’  includes  a  professor,  reader,  lecturer or other person appointed or recognized by  the  University  for  the  purpose  of  imparting  instruction or conducting and guiding research or  extension programmes, and any person declared by  the statutes to be a teacher;”

The Court then noted that duties of the Physical Director in the University  

were, (a) to arrange games and sports daily in the evening for the students;  

(b) to look after the procurement of sports materials and maintenance of the  

sports ground; (c) to arrange inter-class and inter-collegiate tournaments; (d)  

to accompany the student teams for the inter-university tournaments and (e)  

to guide the students about the rules of the various games and sports and  

held:-

“9. From the aforesaid affidavit, it is clear that a  Physical Director has multifarious duties.  He not  only  arranges  games  and  sports  for  the  students  every evening and looks after the procurement of  

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sports material and the maintenance of the grounds  but  also  arranges  inter-class  and  inter-college  tournaments  and accompanies  the  students’  team  when they go for the inter-university tournaments.  For that purpose it is one of his important duties to  guide them about the rules of the various games  and sports.  It is well known that different games  and sports have different rules and practices  and  unless the students are guided about the said rules  and  practices  they  will  not  be  able  to  play  the  games  and  participate  in  the  sports  in  a  proper  manner.  Further, in our view, it is inherent in the  duties of Physical Director that he imparts to the  students  various  skills  and  techniques  of  these  games and sports.   There  are  a  large  number  of  indoor and outdoor  games in  which the  students  have to be trained.  Therefore, he has to teach them  several skills and techniques of these games apart  from the rules applicable to these games.

10. Having  regard  to  the  abovesaid  material  before  us,  we  are  clearly  of  the  view  that  the  appellant comes within the definition of a teacher  in sub-clause (n) of Section 2 of the Act.”

22. We may observe that definition of `teacher’ contained in Section 2(n)  

of the Andhra Act was an expansive one to include those persons who were  

not only been imparting instructions but also were conducting and carrying  

on research for extension programmes.  It also included those who had been  

declared to be a teacher within the purview of the definition thereof in terms  

of any Statutes framed by such State.

23. In our view,  the  aforementioned  decision has been misapplied  and  

misconstrued by the High court.   

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It is now well settled principles of law that a decision is an authority  

for what it decides and not what can logically be deduced therefrom.  In  

Ramamohana Rao (supra), this Court, having regard to the nature of duties  

and functions  of  Physical  Director,  held  that  that  post  comes within  the  

definition of teacher as contained in Section 2(n).  The proposition laid down  

in that case should not have been automatically extended to other case like  

the present one, where employees are governed by different sets of rules.

24. For  the  aforementioned  reasons,  the  appeal  is  allowed  and  the  

impugned judgment is set aside.  No costs.

.………………………………J [S. B. SINHA]       

.………………………………J [G.S. SINGHVI]       

.………………………………J [DEEPAK VERMA]       

New Delhi July 28, 2009

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