JAIN, J. - (1.) THIS special appeal under section 18 of the Rajasthan High Court Ordinance has been filed against the order of the learned Single Judge dt. 29. 7. 1993 whereby while allowing the writ petition he has ordered that the petitioner will be entitled to the grade of Rs. 355-570, the revised grade of which is Rs. 490-840, as revised from time to time.
(2.) LEARNED counsel for the appellant-non-petitioners has contended that the learned Single Judge has erred in granting pay scale of Rs. 355-570 to the petitioner-respondent since the respondent is not I. T. I, qualified and the appellants have rightly fixed him in the pay scale of Rs. 420-740, which was equivalent to the old pay scale of Rs. 295-500, provided for non-I. T. I. He has relied on V. Markendriya Vs. State of Andhra Pradesh (1 ). Learned counsel for the petitioner-respondent has not been able to dispute the ratio laid down by the Apex Court in V. Markendriya's case (supra) but contended that a Division Bench of this Court in Ravi Shanker Acharya Vs. State (D. B. C. W. Petition No. 3368/88 decided on 01. 10. 93 has considered the Single Bench decisions rendered in Bajrang Singh Vs. State (S. B. C. W. Petition No. 3052/83) decided on 10. 12. 1991 and Sohan Lal Vs. State (S. B. C. W. Petition No. 2580/83) decided on 23. 7. 85, and directed the respondents to consider the case of the petitioner and fix his pay scale in the grade of Rs. 355-570 provided to I. T. I. holders. Heard learned counsel for the parties and perused the impugned order as well as the decisions cited at Bar. In V. Markendriya vs. State of A. P. (Supra) the member of the Andhra Pradesh Engineering Subordinate Service as Supervisors in Category 1 of the Engineering Branch, who were granted lower pay scale being non-graduate in comparision to graduate Supervisors preferred an appeal before the Apex Court against the judgment of Division Bench by which order of the learned Single Judge granting same scale or pay to the non-graduate Supervisors as pre scribed for the graduate Supervisors was set aside. Their lord ships of the Supreme Court while holding that the classification made between the graduate Supervisors and non-graduate Supervisors is reasonable and the State Government did not violate Arts. 14 & 16 of the Constitution in prescribing different scales of pay for them, observed as under : - "the principle of 'equal pay for equal work' is not abstract one, it is open to the State to prescribe different scale of pay for different cadres having regard to nature, duties, responsibilities and educational qualifications. Different grades are laid down in service with varying qualification for entry into, particular grade. Higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres. " It is settled that reasonable classification is permissible provided different treatment to the two classes of employees is founded on rational basis having nexus with the objects sought to be achieved and principle or equal pay for equal work is applicable among equals but it cannot be applied to unequals. It is also settled that the State can prescribe different pay scales for different cadres having higher qualification and experience based on length of service.
(3.) APPLYING the same principles in the present case, we have not hesitation in stating that the learned Single Judge has erred in granting same pay scale to the respondent, who is a non-I. T. I. as is prescribed as I. T. I. holders Tracer since the provisions of Article 14 or Article 16 of the Constitution do not exclude the laying down of selective tests, nor do they preclude the Govern ment from laying down qualifications for the past in question. So far as the Division Bench decision of this court rendered in Ravi Shanker Vs. State (supra) is concerned, the same is not of any advantage to the petitioner-respondent as in that case vires of clauses which classifies the pay scale on the basis of qualification Was abundoned but the case was decided on the mutual consent of the parties on the basis of decisions of this Court rendered in Bajrang Singh Vs. State (supra) and Sohan Lal Vs. State (supra), which is clear from the order itself, wherein it is recorded that "the counsel for the parties agree that the case is squarely covered by the decisions cited above. " Apart from that, at that point of time the decision of their lordships of the Supreme Court rendered in V. Markendriya Vs. State of A. P. (supra) was not brought to the notice of the Court. There fore, the Division Bench decision relied by the counsel for the petitioner-respondent is not applicable and in our opinion, the said decision is perincuriam. Validity of a rule which provides that fresh recruited untrained teacher will receive fix pay of Rs. 130/- untill he got training whereas pay scale of trained teacher is Rs. 160 to 360, was challenged before this Court in another case. This Court struck down the rule in part making distinction in the pay of trained and untrained teacher. Their lordships of the Supreme Court in State of Raj. Vs. Gopi Kishan (2) while accepting the State appeal held that rule making distinction in their pay scales on the basis of their educational qualifications is not discriminatory. Similar view has been expressed by the Apex Court in State of W. B. Vs. Hari Narayan & Ors. ;