- (1.) BY this writ petition, the petitioner has challenged the entry "welder" in Col. No. 4 of items No. 15 of the Schedule annexed to the Rajasthan Ground Water (Subordinate Service) Rules, 1973 (for short 'the Rules') and has prayed that this entry be declared invalid being discriminatory and violative of Arts. 14 and 16 of the Constitution as by making Welder eligible for appointment by promotion along with Mechanic Gr. II to the post of Mechanic Gr. I has affected the right of the petitioner and like others adversely.
(2.) MR. M. MRidul, the learned counsel appearing for the petitioner has contended that there is difference in pay-scales, qualifications and nature of duties between the posts of Mechanic Gr. II and the Welder. He has submitted that as per item No. 15 of the Schedule annexes to the Rules, 75% posts are to be filed in by promotion from amongst the Mechanic Gr. II over welders who possess 5 years' experience on the post and are literate and 25% posts of Mechanic Gr. I are to be filed in by direct recruitment from amongst to be filled in by direct recruitment from amongst the Welders, who possess diploma in Mechanical or Electrical Engineering with one year's practical experience in repairing of Petrol and Diesel Machines. According to him, clubbing of two posts of Welder and Mechanic Gr. II for promotion to the post of Mechanic Gr. I is arbitrary. He has submitted that the pay scales for the post of Mechanic Gr. II is higher than of a Welder, which is clear from the Schedule appended to the writ petition. The qualifications required for the post of Mechanic Gr. II is more onerous than those required for the post of Welder, for which he has drawn our attention to Annexure-R. showing the minimum qualification for the posts of Mechanic Gr. II and the Welder. So far as his submission, regarding difference in nature of duties is concerned, he has submitted that duty of the Mechanic Gr. II is to repair Rigs, Internal Combustion and all allied machines such as air compressor, welding set. Gen. set etc. whereas the duty of the Welder is only to eld the necessary joints or plates according to the machine device. He has, there fore, submitted that stubbing of theses two posts of Mechanic Gr. II and the Welder for promotion to the post of Mechanic Gr. I is arbitrary and violative of Articles 14 and 16 of the Constitution. In this respect, he drew our attention to the letter Annexure-2 dated 21. 2. 1985 and the letter Annexure-3 dated 20. 4 1995 where in it has been stated that for promotion to the post of Mechanic ' Gr. I, the clubbing of two posts viz. , Welders and Mechanic Gr. II was not proper and hence, the Chief Engineer has recommended for its reconsideration to he State Govt. On the other hand, Mr. M. R. Singhvi, the learned counsel appearing for the respondents has argued that difference in pay scales of the posts of Welder and Mechanic Gr. II is too meagre and unsubstantial and hence, it cannot be a decisive factor to hold the clubbing of these two posts Of Mechanic Gr. II and Welder for promotion to the post of Mechanic Gr. I as invalid and violative of Articles 14 and 16 of the Constitution. It this respect, he invited our attention to a decision of their lordships of the Supreme Court in A. S. Iyer & Vs. Balasubramanyam & Ors. (1980 SCC (L&s)-145. We have given our most anxious consideration to the rival contention raised by the learned counsel appearing for the parties. Now, we will have to determine whether it is a case of unequal being treated as equals and accordingly, whether the entry 'welder" in col. No. 4 of item No. 15 of the Schedule annexed to the Rules has to be deleted as being violative of Arts. 14 and 16 Constitution ? In Mohd. Usman V. State of A. P. (1), their lordships of the Supreme Court have observed that the proposition of law that the doctrine of equality is attracted not only when equals are treated as unequal but also when unequal are treated as equals and that Art. 14 is offended both by a finding difference when there is none and by making no difference when there is one is unexceptionable, But the rule of equality is intended to advance justice by avoiding discrimination.
(3.) ON the strength of the aforesaid proposition of law enunciated by their lordships of the Supreme Court in Mohd. Usman's case (supra), we will examine the facts of the case and the law which has been cited by both the learned counsel. The contention of Mr. Mridul is that in that in this case, the pay scales of Mechanic Gr. II is higher to that of a Welder. He has further submitted that a Welder who is promoted from the post of Fitter gets his promotion on the post of Mechanic Gr. I on expiry of 8 years whereas a Mechanic Gr. II who is promoted from the post of Fitter gets his promotion on the post of Mechanic Gr. I on expiry of ten years. He has also submitted that the Job requirements for the post of Mechanic Gr. I also very much differ when compared to job requirement of the post of a Welder. The post of Welder has no nexus with the job that he will have to perform as Mechanic Gr. I and thus, it is a case of treating unequal as equals. So far as difference in pay scales is concerned, Mr. M. R. Singhvi, the learned counsel appearing for the respondents has submitted that it is not a decisive factor, In this respect, he our attention to a special Bench decision of this Court in Amarchand V. State of Rajasthan (2 ). That was a case where for promotion to the post of Head Master, Senior Teachers and Teachers Gr. II were made eligible in the ratio of 1:4. It was alleged that for becoming a senior Teacher, one has to pass post-Graduation examination with a degree of Bachelor of Education whereas for the post of second Grade Teacher, one has to pass Graduation examination with a degree of Bachelor of Education. In that case, it was argued by Mr. Mridul that a Senior Teacher definitely places himself in superior category in that way and, therefore, he cannot be equalised in the matter of selection to the post of a Head Master with a second Grade Teacher, who in matters of salary and educational qualification stands inferior to the former class, while relying on Mohd, Usman's case (supra) and the decision in Naval Kishore Singh V. U. O. I. (3), It was held that the difference in pay scales and educational qualification cannot be treated as decisive in such matters. ;