LODHA, J. - (1.) THE State Government through Secretary, Department of Education and the Secretary, Department of Finance have preferred this appeal aggrieved by the order dated 8th April, 2004 passed by the Single Judge whereby he allowed the writ petition filed by the present respondents and directed the appellants herein to comply with the recommendations of the Beri Commission as approved by the Committee of Secretaries.
(2.) THE short question that requires to be considered by us in this appeal is whether the direction issued by the Single Judge to the present appellants to comply with the recommendations of Beri Commission as approved by the Committee of Secretaries is legally sustainable. In other words, can a mandamus be issued by the Court as has been done by the Single Judge directing the compliance of recommendations of a Commission recommending the pay scale to various categories of employees in the State of Rajasthan. The controversy arises from the facts which may be briefly noticed by us. For the sake of convenience we shall refer to the parties as parties in the writ petition, namely; the present respondents, `the petitioners' and the present appellants, `the respondents. ' The petitioners are Aeromodelling Instructors and employees of the State of Rajasthan. That their services are governed by the Rules and Regulations framed by the State of Rajasthan is an admitted case. Relying upon the general and specialised qualifications, the petitioners set up the case that an Aeromodelling Instructor is not required to be technically qualified but must also held `c' certificate of NCC. A cadet who is holding `c' certificate becomes eligible to be appointed in the defence services directly and commission is given to him on the basis of interview and suitability. Although, according to the petitioners, the Aeromodelling Instructors are substantively in employment of different states, the necessary qualifications have been prescribed by the Director General of National Cadet Corps (NCC) and it is not open to the state to alter or modify the essential qualifications prescribed. The Aeromodelling Instructors are said to be performing identical duties all over the country and it is the petitioners' case that there is absolutely no difference in the nature of duties assigned to Aeromodelling Instructors of one state or the other. The petitioners set up the case that in so far as State of Rajasthan is concerned, Aeromodelling Instructors employed herein do not have any promotional avenues and, thus, an Aeromodelling Instructor recruited to the said post as such retires from that post alone without getting even a single promotion. That post of Aeromodelling Instructor in the State of Rajasthan has been included in `subordinate service' of the State is not in dispute. Relying upon the principle of `equal pay for equal work' and the recommendations of the Beri Commission which is said to have examined the pay scales of Aeromodelling Instructors, the petitioners prayed for the following reliefs:      " (i) by an appropriate writ order or direction the respondents may be directed to implement the Report of the Beri Commission for the Aeromodelling Instructors in the State of Rajasthan. (ii) by further appropriate writ order or direction the respondents may be directed to give pay scale to the Aeromodelling Instructors employed in the State of Rajasthan equal to the Aeromodelling Instructors employed in the State of Andhra Pradesh and Manipur. (iii) By further appropriate writ order or direction the respondents may be directed to give higher pay scale to the petitioners/aeromodelling Instructors in the State of Rajasthan. (iv) the directions may be further issued to get further promotion avenues for the Aeromodelling Instructors employed in the State of Rajasthan. (v) That the direction may be issued to give the status of gazetted officer to the Aeromodelling Instructors in the State of Rajasthan. The state government through its functionaries contested the writ petition by filing written response. It was reiterated that the petitioners are the government employees and governed by the Rajasthan State Subordinate Service Rules. As per the policy in the state subordinate service, if an employee is not in a position to get any promotion, he/she is granted selection grade on completion of 9, 18 and 27 years and thereby such employees in subordinate services get all benefits and advantages of promotion and plea of stagnation pales into insignificance. The respondents set up the case that there is no recommendation of Beri Commission available for high pay scale to Aeromodelling Instructors. They pleaded that the recommendations and suggestions of the Beri Commission are to the government and these recommendations and suggestions are not binding. The State Government set up the plea that the pay scales of Aeromodelling Instructors cannot be compared with other posts nor can it be compared with the pay scales given in other states. Each state has to prescribe pay scales to different categories of its employees on the basis of financial position and provision. They submitted that the State of Rajasthan never took decision that the pay scales of its employees would be given identical to the pay scales of the employees under the Union Territory. The State of Rajasthan is maintaining its own pay scales for the post of Aeromodelling Instructors and the petitioners cannot claim that they should be given pay scales of Aeromodelling Instructors which are provided by other states. The plea of discrimination is emphatically denied by the state and it has been submitted that as there are only four posts of Aeromodelling Instructors and their work is to impart training to NCC cadets and although no promotional avenues are available but that grievance is taken care of by grant of selection grade. The petitioners filed rejoinder to the reply submitted by the State government and reiterated their stand set up in the writ petition.
(3.) THE Single Judge while allowing the writ petition of the petitioners noticed that since the state accepted the recommendations of the Beri Commission and that the Committee of Secretaries (for short, `cos') examined the Beri Commission's report and gave their suggestion and the same have been implemented, however, the state has not disclosed what were the Beri Commission recommendations and approved by the COS and, therefore, the state government must comply with the recommendations of the Beri Commission as approved by the COS. While directing so, the Single Judge relied upon the decision of the Supreme Court in the case of Purshottam Lal and other vs. Union of India and another, AIR 1973 SC 1088. Mr. M. S. Raghav, Additional Advocate General assailed the order of the Single Judge and vehemently contended that no mandamus could be issued by the Single Judge directing the state government to comply with the recommendations of the Beri Commission as approved by the COS. He relied upon the decision of the Supreme Court in the case of M. P. Rural Agriculture Extension Officer's Association vs. State of M. P. and anr. (2004) 4 SCC 646. On the other hand Mr. Manoj Kumar Sharma, the counsel, for the original writ petitions heavily placed reliance upon the judgment of the Supreme Court in the case of Purshottam Lal and another (supra) and submitted that the judgment in the case of Purshottam Lal being by the Constitution Bench must be applied to the facts of the present case and the Single Judge cannot be said to have erred in passing the order impugned in the present appeal. When his attention was drawn to the Division Bench judgment of this Court dated 7th May, 2007 in the case of State of Rajasthan and others vs. Rajasthan Vidhi Seva Sangh and another, D. B. Civil Special Appeal (Writ) No. 633/1992, Mr. Manoj Kumar Sharma submitted that the reference concerning pay scale of Aeromodelling Instructors was specifically made to the Beri Commission and, therefore, the said decision cannot be applied to the facts of the present case. ;