IMPORTANT POINT
The criteria of fixation of pay scale is dependent upon the placement of the person concerned-in the event the placement is in a teaching post obviously one expects to get pay-scale fixed as a teacher and not as a non-teaching member of the staff. The Appellate Bench of the High Court failed to appreciate this in terms of the order of Supreme Court.

Headnote:Fixation of Pay Scale-Graduate Laboratory Assistants of Sponsored and Non-Government Private Colleges of West Bengal-Writ to High Court for issuance of writ of mandamus to treat them as teaching staff as per the definition contained in different University Act and also to give them a scale of pay equivalent to that of physical instructors-High Court s Single Judge issued a writ of mandamus-Upheld by DB-Upheld by Supreme Court with modification of date w.e.f. 1-8-1987 instead of 10-8-87 directed by High Court-Another class of instructors also employed in Non-Government colleges were called Physical Instructors-Two categories-Qualified-Unqualified-Instruction of only one scale of pay for physical Instructors and with a teaching status-Single Judge accepting- Government pleading two pay scales-No documentary evidence-D.B. accepting two classes of physical Instructors-Petitioners shown as teachers were given pay scale of non-teaching-Whether correct? (No)-Appeal allowed-D.B. set aside, Single Judge restored.
       Held : A bare perusal of the notification does not however give any reason whatsoever as to the necessity of its issuance - the notification on the contrary makes it clear that there would be no enhancement of pay as also the status, as non-teaching staff would remain unchanged: It is only the word "Assistant" was replaced by the word "Instructors" - but does that confer any material benefit to the persons concerned? The answer obviously cannot but be in the negative. It is on this background and upon perusal of the notification Mr. Ganguli s criticism seems to be rather apposite though couched in a very strong language but by reason of the fact - situation of the matter in issue - if we may say so, justifiably so. Incidentally, be it noted that Graduate Laboratory Assistants working in government colleges have been given the status and designations of Demonstrators and have been accepted as members of teaching staff. According to the appellants they possess similar qualifications, experience etc. but even though being similarly circumstanced, the Graduate Laboratory Assistants of sponsored and non-government private colleges of West Bengal stands discriminated against the Graduate Laboratory Assistants of Government colleges in West Bengal. The earlier writ petition which stands concluded by this Court s order dated 26th July, 1994 contained detailed list of University Acts and Statutes wherein "teachers" have been defined to "include the Instructors". (Para 6)
       On this score, a chart has been produced in Court on 20th March, 2001 which however cannot by any stretch be said to be in support of the contention of the State that there were existing two different grades and scales of pay amongst Physical Instructors one being to be a qualified Physical Instructor and other being unqualified Physical Instructor. Significantly the annual report as published by the Education Department of the State Government unmistakably record the existence of one grade of Physical Instructor under paragraph 8.16. The annual report details out teachers of Government Colleges in the manner as below:
       "8.16. Teachers of Government Colleges
       S.No. Category of Teachers Pay scale (Basic) w.e.f. 1.1.1986
       5. Demonstrator Rs. 1740-3000
       4. Physical Instructor Rs. 2200-4000
       3. Lecturer Rs. 2200-4000
       2. Professor/Vice Principal Rs. 3700-5700 (Grade-II)
       1. Principal Rs. 4500-7300"
       Paragraph 8.2.1 also records the details of the Administration of Non-Government Colleges as below:
       The teachers of the non-Government Colleges are of the following categories (basic):-
        1. Laboratory Instructor Rs.1390-2970
        2. Demonstrator
        3. Physical Instructor as in Government Colleges
        4. Lecturer
        5. Principal
       This itself however negates the contentions as raised by the State Physical Instructors in non-Government Colleges are termed as teachers with scale of pay Rs.1390-2970 whereas Physical Instructors were also termed as teachers and scale of pay appears to be similar "as in Government Colleges" i.e. Rs. 2200-4000. Secondly in paragraph 8.2.4 revised pay scale of the non-teaching posts (Group B pay scale) have been noted to be Rs.1390-2970. It thus leaves no manner of doubt that whereas the petitioners were shown as teachers of non-government colleges they were in fact granted the scale of pay applicable only to Group B employees belonging a non-teaching staff and thus granted a non-teaching scale to the petitioners. It is on this score, however, Mr. Ganguli contended rather emphatically that the High Court fell into a great error in accepting the contention of having two classes of Physical Instructors without any factual or documentary support. The criticism of Mr. Ganguli seems to have some force since there was in fact a total failure on the part of the respondents to produce any documentary support in tune with the submission as noticed above - Obviously the records apparently runs counter to the submission and findings as recorded by the High Court. (Paras 19, 20 & 21)
       This circular however stands challenged before the learned single Judge who was pleased to quash the same upon acceptance of the contentions of the writ petitioners the appellants herein. The learned Single Judge categorically recorded that the petitioners being Graduate Laboratory Instructors question of further classifying them does not and cannot arise and upon reliance of the annual report as noticed above quashed and set aside the circular. The State Government however being aggrieved went before the Appellate Court and the Appellate Bench however allowed the appeal and opined that the Government Order dated 26th December, 1994 cannot be said to be arbitrary or contrary to the decision of this Court. Since it is clearly stated therein that Graduate Laboratory Instructors shall continue to enjoy the teaching status. The High Court, however, has failed to appreciate the role of Physical Instructors in the matter of fixation of pay scale in terms of the order of this Court and it is on this count a definite statement has been made even before this Bench that there are existing two definite classes of Physical Instructors one being qualified and another being unqualified, but there is no factual support therefor. Surprisingly, the basis of the order of this Court has not been delved in to by the High Court and the High Court thus clearly fell into an error. Needless to say that in the event there was some documentary support viz.-a-viz. the stand of the respondent-State as regards the existence of two definite Grades of Physical Instructors obviously the Government Order issued in December, 1994 could not have been found fault with - since the same would have been in consonance with the order of this Court. But there being no factual support therefor, we are not in a position to record our concurrence with the submissions of Mr. Reddy as regards the justifiability of making Group B salary available even after conferment of teaching status as upheld by the Appellate Bench of the High Court. The conferment of status as a teacher runs counter to fixation of pay scale of Group B employees since all the other teachers of the Government and non-government colleges are placed in the category of teachers. A teacher cannot possibly be allowed a pay scale of a non-teaching post: The same is contradiction in terms and we need not dilate thereon. The criteria of fixation of pay scale is dependant upon the placement of the person concerned - in the event the placement is in a teaching post obviously one expects to get a pay-scale fixed as a teacher and not as a non-teaching member of the staff. Apparently the High Court has not delved with the issue in this perspective and thus clearly fell into an error in categorising a teacher with a non-teaching pay-scale. The circular clearly authorises the Graduate Laboratory Instructors of non-Government colleges to continue to have the teaching status but decry the financial benefits therefor! Would the same be not an arbitrary exercise of powers or can it by any stretch be suggested to be otherwise rational and indiscriÿÿÿÿÿÿÿÿÿÿÿÿÿÿ Court at an earlier occasion unequivocally upheld the reasonings of the learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and on the wake of such a finding of this Court question of decrying a pay scale which is otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court. Administrative ipsi dixit cannot infiltrate on to an arena which stands covered by judicial orders. On the wake of the aforesaid these appears succeed and are thus allowed, the order of the Appellate Bench of the High Court stands set aside and quashed. The order of the learned Single Judge stands restored. The entitlement by reason of the revision be made available from August 1, 1987 as directed by this Court in the earlier judgment dated 26th July, 1994. There shall be no order as to costs. (Paras 24 & 25)

JUDGMENT

Banerjee, J.-Leave granted.

2. The issue pertaining to fixation of pay scale, though irksome continues to be placed before this Court from time to time and this matter is no exception. Significantly, however, one ought to note at this stage only that the matter in issue has already travelled to this Court once before but the issue still persists - surprisingly though but this has turned out to be the trend of litigation in this country.

3. The fact situation of the matter in issue involve the Physical Instructors and Graduate Laboratory Instructors in the employment of different non-governmental colleges in the State of West Bengal: The principal issue for adjudication presently however is whether the scale of pay given to the petitioners is in accordance with the writ of Mandamus as issued by the learned single Judge of the Calcutta High Court and as confirmed by the Appellate Bench of the High Court and stands accepted by this Court in terms of this Court s judgment and order dated 26th July, 1994.

4. Before adverting to the issue as noticed above and the rival contentions as raised therefor, a brief factual backdrop would be convenient at this stage.

5. The appellants are Science Graduates of different universities in the country and have been appointed as Laboratory Assistants in colleges and in addition to their normal duties, the appellants were supposed to assist the teachers and help the students in practical classes, impart instructions to the students in practical classes and to perform demonstration work including preparation of the lesson units in the practical classes. According to the appellants these Laboratory Assistants were all along being treated as teaching staff and pay and allowances including the Government share of Dearness Allowances were paid to them until the issuance of the government order No. 288 - Education (CS) dated 21st March, 1969 wherein Laboratory Assistants of non-government affiliated colleges were treated as members of the non-teaching staff. The effect of such re-designation had a direct impact as regards the payment of Dearness Allowances and obviously the same being prejudicial to the interest of the appellants, representations followed against the Government Order but, however, to no effect. Representations, were made since the withdrawal of teaching status was otherwise discriminatory as the Graduate Laboratory Assistants had to discharge teaching function as well, from the normal conduct of the Laboratory work.

6. The factual score depict that subsequently in August, 1983 the State Government redesignated the Laboratory Assistants as Laboratory Instructors - It is on this score that Mr. Ganguli, learned senior Counsel appearing in support of the appeals very strongly criticised. This change of nomenclature according to him was otherwise meaningless as there was neither any conferment of status of teachers or the grant of any pay scale consistent with the teaching status. The Government notification was attributed to be a mischievous deception and a "hoax" - a rather strong criticism: the question therefore arises whether there was any justification of such an attribute to the government notification dated 10th August, 1983; a short question consequently, thus-what was the necessity for issuance of such an order- would the change of nomenclature assist in any way the Graduate Laboratory Assistants? A bare perusal of the notification does not however give any reason whatsoever as to the necessity of its issuance-the notification on the contrary makes it clear that there would be no enhancement of pay as also the status, as non-teaching staff would remain unchanged: It is only the word "Assistant" was replaced by the word "Instructors" - but does that confer any material benefit to the persons concerned? The answer obviously cannot but be in the negative. It is on this background and upon perusal of the notification Mr. Ganguli s criticism seems to be rather apposite though cou

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