D. Basu, J. - (1.) This litigation has got a fairly long history. In 1954 the Director of Public Instruction invited applications for appointment to the posts of Sub -Inspector of Schools in the pay scale of Rs. 100 -225 from persons possessing Bachelor degree in the minimum with a degree or diploma in teaching. At that point of time no differentiation was made between the ordinary graduates and the graduates with Honours or persons holding a Master's degree. But after recruitment on the basis of the aforesaid announcement in 1959 the Government thought that they could attract people with better academic qualifications to the job only if a higher scale was offered to a candidate having an Honours degree or a Master's degree and, therefore, they raised the pay scale of persons holding an Honours or a Master's degree. The higher scale of pay was Rs. 130 -850, and this order was given retrospective effect from April 1, 1959. Subsequently in 1962 the pay scale of both the higher qualified and the ordinary graduates were revised as follows: ordinary graduates - -Rs. 125 -325 and graduates with Honours or holders of Master's degree Rs. 225 -475. In 1964, some of the Petitioners belonging to the category of ordinary graduates came and challenged the higher scale of pay which was being offered to the persons holding higher class of degrees as discriminatory inasmuch as both the ordinary graduates and the Honours graduates had been recruited on the basis of the same annoucement and had been treated alike with no differentiation on the basis of the higher degrees. The Court upheld the contention of the Petitioner of that case, namely, Civil Revision No. 253(W) of 1964 and held that, though the Government was free to make the differentiation in favour of the higher qualified officers prospectively by opening a new cadre, they could not make a differentiation with retrospective effect so as to affect those who had been recruited on the same footing and had acquired the right to be treated alike under Article 14 of the Constitution on the foundation of such recruitment. The Court, therefore, made the Rule absolute and passed the order in the following words: The proper order should be an order in the nature of mandamus directing the opposite parties not to enforce the impugned order in annEx. B, read with the order of 1962, as specified in para. 10 of the petition in such manner as to subject the Petitioners to a lower scale of pay than other Sub -Inspectors of Schools who have been recruited on the basis of the announcement in annEx. A but who happen to be Honours graduates or M.A.s or M.Sc.s. The judgment in the previous Rule, being Civil Revision No. 253(W) of 1964, was challenged in appeal by the State Government, but ultimately that was given up so that the judgment of this Court stands.
(2.) If after the above order the Government had raised the pay scale of the ordinary graduates to the level of that of Honours graduates the present litigation would not have arisen, but what the Government did was to pull down the Honours graduates by issuing the order at annexs. B and C to the present petition by which the order of 1959 which had initially made a differentiation between the ordinary graduates and the Honours graduates and M.A.s, was withdrawn and both the classes were put on the same level at the higher intermediate scale of Rs. 175 -325. The Petitioners belong to the higher category. Eventually the Government has adhered to its policy of encouraging the higher qualified persons by opening a new grade of Deputy Inspector of Schools having the pay scale of Rs. 225 -475 as stated in para. 11 of the petition, by the Government order No. 2018 dated April 15, 1965, which is reproduced at annEx. Z to the counter -affidavit. Though ultimately the Petitioners have thus been rewarded for their higher qualification they still feel aggrieved because of the withdrawal of the notification of 1959 and 1962 altogether and by the ultimate paragraph at annEx. C which says: The separate statement of the amount drawn in excess by each employee may be forwarded to the State Government for necessary action. The Petitioners before me are aggrieved because they would, by the order at annEx. C lose the benefit of the higher pay scale of Rs. 225 -475 which they otherwise have enjoyed on the basis of the order dated January 2, 1962, and since it has been revised by the impugned order at Rs. 175 -325 they are afraid that they might have to refund the excess amount drawn by each of them month by month between the two dates of 1962 and 1965 mentioned earlier though of course the Government has not yet issued any retrenchment slip or order of recovery. The Petitioners came to this Court and obtained this Rule on August 16, 1965. Their contention is that both the annexs. B and C should be struck down firstly because the order of 1959 by which the initial differentiation between the two categories was made or subsequently embodied in a notification issued under Article 309 of the Constitution being No. 5472F/27.12.61, so that such notification could not be amended by administrative orders, not issued under Article 309 of the Constitution. It has been contended secondly, that the Petitioners in the present Rule not having been made party to the previous Rule [Civil Revision No. 253(W) of 1964] they could not be affected by any decision in that Rule. It is true that a person not being a party to a proceeding cannot be bound by the decision arrived at therein, but the real question for determination in the present proceeding is not whether the Petitioners would be bound by the decision in the previous Rule, but whether they have acquired any legal right to the higher pay scale except that which has accrued to them by opening a new cadre by the order dated April 15, 1965, which has been referred to in annEx. 11. When the Petitioners were appointed in 1954 along with the ordinary graduates there was no assurance given to them that they would get a higher pay. The mandate of Article 14 gives not merely a right to one person not to be discriminated against but also enjoins another party who had been on the same platform not to have any preference or discrimination in his own favour. That is how the Petitioners cannot enforce their right to have a higher pay scale until a new grade was opened in their favour in April 1965 for employees having higher qualification, which the Government had every right to do. The present claim of the Petitioners would be to give them a preference as against the ordinary graduates which itself would be unconstitutional under Article 14. No Court can, therefore, give the relief in the form in which it is asked for. So far as the other point that it has been done by administrative order and not by an order formally made under Article 309 is concerned, that also loses importance in view of the constitutional proposition as enunciated by me just now, which raises a bar against the Petitioner.
(3.) But at the same time it must be said that a recovery of the amount which the Petitioners have already drawn in excess might cause hardship to the Petitioners in these days. Economically it would not be sufficient consolation to them that they have eventually got a proper assessment of their higher qualification. That, however, is a matter for consideration of the State Government and it might be reasonably expected that the process of recovery should be as smooth and easy as to give the least pain to the Petitioners. With these observations this Rule is discharged.;