Hrishikesh Roy, J.

1. Heard Mr. S.K. Medhi, learned counsel appearing for the petitioners. The Standing Counsel, Finance, Mr. B. Gogoi and the Standing Counsel, Education Mr. A. Deka appear for the respondents. The petitioners are Subject Teachers of Govt. Higher Secondary Schools of Assam and are encadred as Class-I Jr. in the Assam School Service. The Subject Teachers in Govt. Higher Secondary Schools are appointed on recommendation by the Assam Public Service Commission (hereinafter referred to as "the APSC"). They challenge the report of the Pay Anomaly Committee (Annexure-C), whereby the Committee rejected the petitioners' claim for up-gradation from Pay Band-3 to Pay Band-4, as was done for similar posts, under the 6th Pay Commission report.

2. The Assam Govt. through the Govt. notification dated 04.02.2010 (Annexure-A), notified the new pay structure for the government employees wherein the system of running Pay Band-1 to Pay Band-4 with corresponding Grade Pay was notified. Under the new pay structure, 30 separate pay scales spread across 5 Pay Bands were provided with corresponding pay for each pay band. Through this notification at point No. 37, the Govt. has upgraded to Pay Band-4, the pay structure of the APS Jr., DTOs, ACS, Superintendent of Taxes, Superintendent of Excise, ARCS, Instructors of Forest College, Botanist and Labour Officers. The corresponding pay band of these category during the 3rd Pay Commission, 4th Pay Commission and 5th Pay Commission were similar to the petitioners. But in the Assam Services (Revision of Pay) Rules, 2010, (hereinafter referred to as the "ROP Rules, 2010") published in the Assam Gazette on 04.02.1010, the Subject teachers of Govt. Higher Secondary Schools were left out from upgradation benefits to Pay Band-4.

3. Mr. S.K. Medhi, learned counsel submits that until the 5th Pay Commission, the petitioners' pay scale was Rs. 4300-11025, which was at par with the Asstt. Instructors of Forest College as well as Asstt. Registrars of Co-operative Societies etc. and yet while pay up-gradation was granted to employees of similar status, the Subject Teachers of the Govt. Higher Secondary Schools were kept at the lower Pay Band-3. The petitioners contend that there is no intelligible difference between those who have been upgraded to Pay Band-4 and accordingly discrimination in pay structure is alleged by the learned advocate.

4, The reason for rejection of the pay up-gradation incorporated at Sl. No. 4 (Annexure-C) in the Pay Anomaly Committee's report is contended to be irrational and Mr. Medhi projects that since the petitioners too are recruited through competitive examination conducted by the APSC, there is no justification to refuse them the up-gradation benefits, which was granted for the other similar category colleagues, like Asst Instructors of Forest College, Asstt. Registrars of Co-operative Societies and Medical Officers of Ayurvedic Colleges.

5. However, Mr. A. Deka, Standing Counsel, Education submits that the Directorate of Secondary Education is not competent to decide on pay up-gradation. However, the representation received from the Assam Govt. Higher Secondary Subject Teachers Association (PGT) was forwarded by the Directorate for consideration of the Government. But no specific stand on merit is taken by the Respondent No. 3.

6. The Under Secretary in the Finance (PRU) Department has filed a counter affidavit on behalf of the Respondent No. 1 and Mr. B. Gogoi, on the basis of the averments in the affidavit submits that other employees who were recruited through Combined Competitive Examination of the APSC were considered for up-gradation. But on granting of pay up-gradation benefit to the Ayurvedic Medical Officers, the Standing Counsel projects that their pay was upgraded to Pay Band-4 on the basis of the recommendation of the Pay Anomaly Committee. The Finance Department allowed that equalizing of pay of all posts recruited through Combined Competitive Examination