JUDGMENT :

S.K. MISHRA, J.

1. By filing this writ petition, the petitioner has prayed for issuance of writ of mandamus commanding the respondents to grant Grade Pay of Rs.4600/-to the petitioner suitably modifying the order contained in Memo No. 11/Ni.1-2/2014/2494 dated 29.07.2015 issued by respondent No. 2 which, according to the petitioner, is discriminatory and violative of Article 14 of the Constitution of India as a different pay scale has been laid down for Trained Graduate Teachers of other streams in the same notification.

By amendment as per the order dated 21.11.2016, a further prayer has been added to declare sub-rule (4) of Rule 2 (to the extent it relates to pay scale) of the Jharkhand Nationalised Secondary School (Service Conditions) Rules, 2004 ultra vires the Constitution of India and to quash and set aside the same.

2. Facts of the case are that the petitioner has passed matriculation and has also obtained a graduate degree in Music. The petitioner is also possessing a Post Grade Degree in the stream of English. He has received training from ‘Praacheen Kala Kendra’ and has been conferred with ‘Sangeet Visharad’ which is equivalent to a degree.

An advertisement was issued by the Jharkhand Academic Council, Ranchi on 11.10.2011 for appointment of post of Assistant Teacher in the newly upgraded secondary schools in the State of Jharkhand in various subjects including ‘Sangeet’.

The petitioner applied for being appointed as an Assistant Teacher in the subject of ‘Sangeet’. After a selection process he was appointed as an Assistant Teacher, however, his pay was fixed at Rs.4500-125-7000/-.

Initially, the writ petitioner filed this application under Article 226 of the Constitution of India which came for hearing before a learned Single Judge, but after filing of counter affidavit the petitioner sought amendment of the prayer and challenged the vires of the Rules contained in notification dated 5th of November, 2004 stating that he has been discriminated in the sense that for Assistant Teacher, Physical Education, the entry level pay scale is Rs.5500-175-9000/-. This, according to the petitioner, is discriminatory and in the teeth of the principle of equality as enshrined under Article 14 of the Constitution of India.

3. Counter affidavit has been filed by the respondents which states that difference in pay scale has been done because B. Ed. Education is not essential for the post of Music Teacher. It is the specific case of the respondents that Assistant Teacher (Music) is not at par with that of Assistant Teacher of other subject. The qualification of Assistant Teacher other than Music subject is Bachelor Degree from recognized university with second division along with Bachelor of Education whereas for the post of Assistant Teacher (Music), the basic qualification is matriculation with degree in music.

4. The learned counsel for the petitioner would rely upon the reported case of the State of Punjab and Others vs. Senior Vocational Staff Masters Association and Others, (2017) 9 SCC 379, in which the Hon’ble Supreme Court has laid down principle that unequal treatment in the same service which was created in a common process of selection cannot be allowed to be made. It is appropriate to take the exact words used by the Hon’ble Supreme Court in the aforesaid case which are quoted below:

“24. It is evident that at the time of initial appointment, both the degree-holders and the diploma-holders were appointed by a common process of selection where for the engineering trade a degree was required and for the non-engineering trade a diploma was considered as the appropriate qualification. A common advertisement was issued and a common process of selection led to the appointment of all persons who were designated as Vocational Masters. They were appointed on a pay scale higher than the general lecturers. They continued to draw a higher scale till the year 1978 when the pay scale of the general lecturers was brought on a par with