Nirmal Singh, J.
1. Petitioners are seeking writ in the nature of certiorari quashing order No. l21-B of 2004 dt. 31st of Jan 04, whereby the respondents have created an additional post of Senior Legal Assistant in the grade of Rs. 6500-10500/- and placement of post of Legal Assistant in the grade of Rs. 5500-9000/-. Direction is also sought to respondents to release the grade of Rs. 6500-10500/- in favour of the petitioners.
2. Petitioners who came to be initially appointed as Junior Assistants in the year 1988 and 1992 respectively were promoted to the post of Senior Assistant in the year 1993 and 1997. In the year 1995 and 1996, they acquired the qualification of LLB for which permission was given to them by the respondents. After completion of the said qualification, they were posted in the legal cell and were entrusted the job of amending the court cases on behalf of the department. In view of their performance in the said legal cell, they were re-designated as Legal Assistants w.e.f. 18th of Dec 99. Thereafter, respondent No. 1, in order to streamline the functioning of the legal section in the department, constituted a Committee for the purpose of finding way outs and laying norms for the appointments' and further promotional avenues for the post of Legal Assistant. After the report was submitted by the said Committee, respondent No. 2 issued an order No. 1049-B of 2003 dated 26th of Dec 03, whereby the norms for appointment and future promotion of the post of Legal Assistant were fixed. The said post was fixed in the pay scale of Rs. 6500-10500/- and was to be filled in by promotion from amongst Senior Assistant/Head Assistants possessing the degree of Law and having minimum five years experience of dealing court cases as such.
3. The case set up by the petitioners is that when they were re-designated as Legal Assistants on the basis of their performance against the post of Senior Assistants in the legal cell, they were entitled for their placement in the pay scale of Rs. 6500-10500/-attached to the post of Legal Assistant as per the recommendation of the Committee concerned. It is stated that they were also possessing the requisite experience of five years. The grievance projected by the petitioners is that the respondents without taking into consideration that post of Legal Assistant has been placed in the grade of Rs. 6500-10500, which is the uniform scale attached to the said post in all the departments of the State Government, issued order No. l21-B of 2004 dated 31st of Jan'04, whereby the post of Legal Assistant was placed in the lower grade of Rs. 5500-9000/- and an additional post of Senior Legal Assistant was created in the pay scale of Rs. 6500-10500/-, It is stated that in pursuance to the said order, the petitioners who were working as Legal Assistants were placed in the grade of Rs. 5500-9000/-, thus depriving them of the benefit of pay scale of Rs. 6500-10500/- which was recommended for the post of Legal Assistant vide order dt. 1049-B of 2003, referred to above, the same having been passed on the basis of recommendations of three member committee appointed for the purpose of adoption of norms for appointment and future promotion of Legal Assistants. It is staled that the order impugned dt. 31st of Jan 04, passed by respondent No. 1 is contrary to the recommendations made by the Committee concerned, and therefore, should not be made applicable to the case of the petitioners so far as the same relates to placing them in a lower grade of Rs. 5500-9000/- and creating of an additional post of Senior Legal Assistant is concerned. The further case put forth by the petitioners is that so far as the post of Legal Assistant in other departments of the State is concerned, the same has been placed in a uniform grade of Rs. 6500-10500/-, and as such, the respondents have to adopt the same norm and the procedure and the action on their part in creating an additional post of Senior Legal Assistant in the pay scale of Rs. 6500-10500 and placement of the post of Loyal Assistant in a lower grade of Rs. 5500-9000/- is not in accordance with the law and also contrary to the rules which govern the service conditions of the employees all over the State.
4. On notice, respondents have filed objections stating therein that the order No. 1049-B of 2003 dated 26th of Dec'03, on which reliance is being placed by the petitioners was not given effect to and stands superseded by order impugned dated 31st of Jan'04, passed by respondent No. 1. It is stated that the petitioners were not released the benefit of pay scale of Rs. 6500-10500/- which was earlier attached to the post of Legal Assistant and it was before releasing of the said grade in their favour that the order impugned came to be passed. It is stated that the said order was also passed on the basis of recommendations made by three member committee appointed for the purpose of adoption of norms for appointment and future promotion in the Legal cell of the department. The further stand taken in the objections is that petitioners have acquired the law qualification through correspondence and the same cannot be equated with Professional degree. It is stated that even though in the order impugned it is only mentioned that promotion to the post of Legal Assistant is to be made by promoting in service officials possessing. Degree of law, that should be construed as a professional degree and not the one possessed by the petitioners. It is further stated that now the department concerned has framed a rule whereby the post of Senior Assistant (Legal) is to be filled from amongst the candidates who are possessing three years degree in law and the petitioner who are not fulfilling this eligibility criteria cannot be promoted to post of Legal Assistant which is a higher post than the post held by the petitioners. It is thus stated that the petitioners cannot be given the relief as sought for by them in the writ petition on the basis of an order which is not in existence.
5. Heard learned Counsel for the parties. Admitted. Let me first deal with the issue as raised by the respondents regarding possession of LLB degree by the petitioners. In this regard, it be seen that the petitioners as noticed above, were initially appointed as Junior Assistants. They later on came to be promoted to the post of Senior Assistant but after they acquired the LLB qualification through correspondence with the permission of the department concerned, they were posted in the Legal cell and were entrusted the job of attending the court cases by way of assisting the standing counsel of the department. On the basis of their performance in the concerned legal section, the authority concerned also changed their designation from Senior Assistant to Legal Assistant. This re-designation was also clone for the purposes of making the petitioners eligible to produce the relevant record and to appear in the courts in the absence of counsel concerned. There were some other terms and conditions also which are apparent from order dt. 23rd of Dec 99, passed in favour of petitioner No. 1. The said order is relevant and is being reproduced below:.In view of his experience which he has gained while working in the Legal Section (Jammu Division) from the last plus three years and also for purposes of making him eligible to produce the relevant record and date/examine the witnesses of the other side during the absence of the counsel/s and plead the cases before the courts on behalf of the Board as and when necessary, the Chairman has been pleased to change his designation from Senior Assistant and redesignate Mr. Ajay Singh Jasrotia. Senior Assistant as Legal Assistant with effect from 18.12.1999 on the following terms and conditions:
i) That this order shall not confer any right or title on Mr. Ajay Singh Jasrotia, to claim for any benefit or higher grade hereinafter and he shall have to work as Legal Assistant in his own pay and grade which he is holding presently.
ii) That his (Mr. Ajay Singh's) inter se seniority shall remain the same and at the said position where it exists at present viz in the senior Assistants cadre and shall not be disturbed/changed hereinafter as has also been sworn in by him in a duly executed Affidavit.
iii) That he (Mr. Ajay Singh Jasrotia) shall get future promotions strictly by virtue of his seniority in the ministerial cadre and at his own turn subject to availability of post.
To the same effect is order passed in favour of petitioner No. 2.
6. If the respondent authorities were of the view that only a Professional Degree in Law is the requisite qualification then at the relevant point of time, they should have taken steps for not posting the petitioners in the legal cell and entrusted the job which is now being done by them and even the petitioners should not have been re-designated as Legal Assistants. Once, the petitioners have been directed by the authority concerned to perform the duties of Legal Assistants which now they have been doing for the last about a decade, the respondents cannot now turn around and take a stand that the degree of Law possessed by the petitioners cannot be taken into consideration as the same is not a Professional degree. Even otherwise, in the order which was earlier passed, by the respondents on the basis of recommendations made by the Committee concerned i.e., Order No. 1049-B of 2003 dated 26th of Dec 03, vide which post of Legal Assistant was placed in the grade of Rs. 6500-10500/-, there is no mention that in service Senior Assistants/Head Assistants who are to be promoted to the post of Legal Assistant should possess three years Professional Degree of Law. Even in the impugned order vide which the pay scale of the post of Legal Assistant was lowered from Rs. 6500-10500 to Rs. 5500-9000/-, the words mentioned are Degree of Law and there is no such mention that an in-service candidate to be promoted to the post of Legal Assistant should possess three years Professional Degree. Therefore, as indicated above, the stand taken by the respondents at this stage that the qualification of Law acquired by the petitioners by way of correspondence course cannot be considered, is a stand which cannot be accepted. It is pertinent to mention here that the petitioners like other Legal Assistants in various departments of the State have only to assist the standing counsel concerned and have not to appear in the courts, unless the counsel concerned is absent or are directed by the authorities in this regard, and therefore, the stand taken by the respondents in para 9 of the objections that any person having obtained a LLB Academic degree through correspondence is not eligible to be enrolled as an Advocate under the relevant provisions of the Advocates Act is not relevant in the present case as the petitioners have not to be enrolled as Advocates. It is not the case of respondents that the degree of law obtained by the petitioners through correspondence has been procured or is a fake degree. Therefore, the stand taken by respondents that the degree of law possessed by the petitioners through correspondence cannot ho considered is a stand which, as indicated above, cannot be accepted.
7. The further question which arises for consideration is whether the respondents were right in passing order impugned by virtue of which they have created an additional post of Senior Legal Assistant in the pay scale of Rs. 6500-10500 and lowered the pay scale of the post of Legal Assistant to Rs. 5500-9000/- and whether the petitioners can be directed to be placed in the grade of Rs. 6500-10500/-.
8. Respondent No. 1 while exercising the power under Section 13(4) of the J&K; State Board of School Education Act, 1975 (here-in-after referred to as the Act), keeping in view the recommendations of three member Committee constituted for the purposes of adoption of norms for appointment and future promotion of Legal Assistants and also considering the opinion of Legal Advisors at Jammu and Srinagar, passed order No. l049-E of 2003 dated 26th of Dec 03, referred to above, whereby norms were laid down for regulating the appointment/promotion of officials working in the Legal Cell at Jammu/Srinagar. In terms of the said order, the post of Legal Assistant was put in the pay scale of Rs. 6500-10500/- and the said post was to be filled up by promoting in service Senior Assistant/Head Assistants possessing the degree of law and having minimum live years experience of dealing with court cases as Senior Assistants or Legal Assistants. As noticed above, respondent No. 1 vide orders dl. 18th of Dec 99 and 23rd of Dec 99 had already changed the designation of the petitioner from Senior Assistant to Legal Assistant.
9. Thereafter, the respondent authorities instead of placing the petitioners in the grade of Rs. 6500-10500, which was attached to the post of Legal Assistant in pursuance to order dt. 26th of Dec 03, passed by respondent No. 1, passed order impugned No. 12143 of 2004 dated 31st of Jan'04, whereby the grade of Legal Assistant was lowered from Rs. 650040500 to Rs. 5500-9000/-, and an additional post of Sr. Legal Assistant was created in the grade of Rs. 6500-10500/, to which post promotion was to be made from amongst in-service Legal Assistants having seven years experience. The said order was also said to be passed on the recommendation of a three member Committee appointed for the purpose of adoption of norms for appointments and future promotions in the legal cell and is also said to be based on the opinion tendered by the Legal Advisors at Jammu and Srinagar. In order to ascertain as to whether any such Committee was again constituted for the purpose and whether there was any opinion given by the Legal Advisors, on 8th of May 08, following order came to be passed by this Court:
There is a dispute with regard to the report of the committee, on the basis of which the grade already fixed for the post of Legal Assistant, has been withdrawn. Number of opportunities have been given to (lie respondents to produce the record of the committee. But the relevant record has not been produced. In the interest of justice, one more opportunity of two weeks is given to the respondents to produce the relevant record.
10. The respondents, however, failed to produce any record to show that there was a subsequent constitution of the Committee for adoption of norms for appointment and future promotion in the Legal cell of the department concerned after the earlier order was passed on 26th of Dec03, by the authority concerned whereby the post of Legal Assistant was placed in the Grade of Rs. 6500-10500/- and further promotional avenues were created for the promotion of Legal Assistants. In the absence of any such record, it cannot be said that a subsequent committee was constituted for the purpose and that the said committee made any recommendations on the basis of which order impugned has been passed. Even otherwise, the order impugned makes no mention of the fact that the same has been passed in supersession of earlier order No. 1049-B of 2003 dated 26th of Dec03, on which reliance has been placed by the petitioners: Therefore, the stand of the respondents that order impugned has superseded the earlier order, referred to above, can also not be sustained. When the report was submitted by the Committee to the authority concerned, it may or may not have agreed with the recommendations so made by the said Committee but once the authority after taking into consideration the report submitted by the Committee concerned regarding adoption of norms for appointment and future promotion of Legal Assistants passed order dt. 26th of Dec03, and placed the post of Legal Assistant in the grade of Rs. 6500-10500/-, which appears to have been made on the basis of the fact that the same pay scale is attached to the said post in every department of the State and autonomous bodies, which fact has not been denied by the learned Counsel for the respondents, then there was no question of lowering the pay scale attached to the post of Legal Assistant from Rs. 6500-10500/- to Rs. 5500-9000/- by creating an additional post of Senior Legal Assistant by a subsequent order.
The respondent No. 1, thus, while passing order impugned has not taken into consideration the said aspect of the matter, and therefore, the order impugned is violative of principles of equality. It is not the case of respondents that earlier no Committee was constituted for the purpose or that the order dt. 26th of Dec03, was passed illegally or the same was passed by an incompetent authority. It is also not the case of respondents that the nature of work, performance of duties, the qualification and the quality of work performed by the Legal Assistants of the said department are different from those performed by the Legal Assistants working in other departments of the State or autonomous bodies. Therefore, in absence of any such stand the action of respondents in passing order impugned can be termed as discriminatory and in case, such an order is given effect to, then the Legal Assistants who are working in the respondent department would be deprived of their right of equal pay for equal work as is being given to their counter parts working as Legal Assistants in other departments of the State and autonomous bodies. Where all relevant considerations are same i.e. the persons having the same qualification are working against identical posts and are discharging similar duties, they should not be treated differently. In AIR 1902 SC 879, Randhir Singh v. Union of India and Ors. it has been hold as under:
It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art.39(d) of the Constitution proclaims equal pay for equal work for both men and women as a Directive Principle of State policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Those equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay....
11. In : AIR1988SC1504 , Jaipal and Ors. v. State of Haryana and Ors. the Apex Court while dealing with the doctrine 'equal pay for equal work' has held has under:
Art. 39(d) contained in Part IV of the Constitution ordains fix; State to direct its policy towards securing equal pay for equal work for both men and women. Though Art.39 is included in the Chapter of Directive Principle of State Policy, but it is fundamental in nature. The purpose of the Article is to fix certain social and economic goals to/avoiding any discrimination amongst the people doing similar work in matters relating to pay. The doctrine of equal work equal pay would apply on the premise of similar work, but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of equal work equal pay would apply and it would not be open to the Stale to discriminate one class with the other in paying salary. The State is under a Constitutional obligation to ensure that equal pay is paid for equal work. Also, it is too late in the day to disregard the doctrine of equal pay for equal work on the ground of one employment being temporary and the other being permanent in nature. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee. So a/so, the difference in mode of selection will not affect the application of the doctrine of equal pay for equal work if both the classes of persons perform similar functions and duties under the same employer.
12. In : (1989)IILLJ169SC V. Markendeya and Ors. v. Stale of Andhra Pradesh and Ors. it has been held as under:
In view of the above discussion we are of the opinion that where two class of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifications, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution, and the Court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the Coin I must consider and analyse the rationale behind the State action in prescribing two different scales of pay. If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the court finds that the classification made by the State in diving different treatment to the two class of employees is founded on rational basis having nexus with the objects sought-to be achieved, the classification must be upheld. Principle of equal pay for equal work is applicable among equals, it cannot 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 invidious discrimination is practised by the State in prescribing two different scales for the two class of employees without there being any reasonable classification for the same. If the aggrieved employees fail to demonstrate the discrimination, the principle of equal pay for equal work cannot be enforced by Court in abstract. The question what scale should be provided to a particular class of service must be left to the Executive and only when discrimination is practised amongst the equals, the Court should intervene to undo the wrong and to ensure equality among the similarly placed employees. The court however, cannot prescribe equal scales of pay for different class of employees.
13. In the case in hand, as noticed above, nature of work being performed by the petitioners is similar to those Legal Assistants working in other departments of the State and autonomous bodies. The classification made by the respondents in giving different treatment i.e. by lowering the pay scale attached to the post of Legal Assistant against which the petitioners have been working, is not based on any rational and by this act of theirs, the petitioners who are similarly situated and performing the same nature of duties as being performed by their counter-parts in other departments of the state and autonomous bodies, have been deprived of their right of equal pay for equal work. This is more so, when the Committee concerned, as noticed above, had already recommended the grade of Rs. 6500-10500/- in favour of Legal Assistants working in the department and based on the said report/recommendation, order had been passed placing the Legal Assistants in the said grade. In view of the facts and circumstances and in view of the legal position noticed above, the order impugned by which pay scale of the post of Legal Assistant has been lowered from Rs. 6500-10500 to Rs. 5500-9000/- depriving the petitioners of their right of equal pay for equal work, cannot be sustained and is accordingly set aside. The petitioners whose designation has already been changed and they having been performing the duties of Legal Assistant would be entitled to the grade of Rs. 6500-10500/- and the conditions incorporated in the order vide which their designation was changed from Senior Assistant to Legal Assistant, shall stand waived when the Committee concerned recommended the grade of Rs. 6500-10500/- for the said post, which recommendation stands adopted vide order dt. 26th of Dec 03, passed by the competent authority.
14. For the reasons mentioned above, this petition is allowed with the following directions:
1/That the order impugned bearing No. 121-B of 2004 dt. 31st of Jan04, is set aside being violative of principles of equality.
2/That the degree of law held by the petitioners on the basis of which they were posted in the legal cell of the respondent department and were assigned the job of Legal Assistant is held to be a valid degree.
3/That the petitioners who are performing the duties of Legal Assistant are held entitled to the grade of Rs. 6500-10500/- which was attached to the said post in terms of order No. 1049-E3 of 2003 ell. 26' of Dec'03, passed by the competent authority on the basis of the recommendation of three member Committee constituted for the purpose of adoption of norms and future promotion to the post of Legal Assistant.
4/Let appropriate orders releasing the aforementioned grade in favour of the petitioners be passed within a period of one month from the date a copy of this order is made available to the competent authority by the petitioners. The effect of this order shall be retrospective w.e.f. 26th of Dec03 i.e. the date on which the post of Legal Assistant was placed in the grade of Rs. 6500-1 0500/-.
5/That the petitioners shall also be entitled to the arrears of salary in the said grade.
6/That in case, the appropriate order as indicated above, is not passed within the stipulated period aforementioned, then the petitioners shall be entitled to interest on the arrears at the rate 9% per annum and the same would be payable by the person on whose account the delay occurs.