NATIONAL FEDERATION OF STATE NFC (PHYSICAL EDUCATION} TEACHERS' ASSOCIATION AND ORS.versusUNION OF INDIA

      NATIONAL FEDERATION OF STATE NFC (PHYSICAL                                A
      EDUCATION} TEACHERS' ASSOCIATION AND ORS.
                                     v.
                            UNION OF INDIA

                          NOVEMBER 16, 1992
                                                                                B
                [M.H. KANIA, CJ. AND S. MOHAN, J.]

       Constitution of India, 1950: Article 14--National Fitness Corps-Junior
Grade I Physical Training Teachers initially appointed by Central Government
transferred to various State Govemments-Scale of pay equivalent to that of      C
primary teachers of Central School grante~Educational qualification, nature
of duty and responsibilities different from those prescribed for Secondary
School Physical Instmctors-Whether entitled to scale of Secondary Sc/tool
Physical Instmctors.
                                                                                D
       Equal pay for equal work-Principle of-Whether applicable where
qualifications, nature of duties and responsibilities are different.

       The Petitioner-Federation, representing Physical Education
Teachers working in various schools other than primary schools in the
country, filed a writ petition before this Court contending that the N.F.C. E
Instructors, previously known as N.D.S. Instructor Junior Grade i, were
given, by mistake, those pay scales which were applicable to teachers in
primary schools, instead of the pay scale of secondary school teacher and
that though there were subsequent revisions, the pay scale applicable to a
secondary teacher was denied, that since the petitioners were not working F
in primary schools, they could not be fixed on the pay scale as applieable
to primary school teachers, and that they would be entitled to the scale t f
pay as applicable to secondary school teachers and the revision thereof,
that while the Kendriya Vidyalaya teachers had been fixed on the pay scale
of Rs.330-560 for primary teachers, there was no justification whatever to
treat the teachers of the petitioner-Federation as ~elonging to the grade of G
primary school teachers when, in fact, none of the teachers belonging tc~
the petitioner-Federation was working in primary school, and, therefore it
was clear case of a denial of equal pay for equal work.

      In the counter-affidavit filed on behalf of the Union of India, it was    H
                                      1
    2                     SUPREMECOURTREPORTS [1992) SUPP. 3 S.C.R.

A submitted. that the scale of pay given to the petitioners was on the basis of
    their qualification and as per their recruitment rules, that the relevance
    of Kendriya Vidyalayas' pay scales was due to the fact that they had the
    pay scale of Rs.330-560 for their primary teachers in their pay structure
    and these were cited as example of pay fixation as done by Kendriya
B   Vidyalayas, and it was a mere coincidence that the revised scale of Junior
    Grade I Instructors was equivalent to that of primary teachers of Kendriya
    Vidyalayas; that since they were not having the essential qualifications for
    C~ntral Schools PETs, they could not be given their scales irrespective of
    the fact that they were doing duties of physical education teachers, that
    the category of Senior Grade II N.D.S. Instructors had been given those
c   scales on the basis of their qualifications and experience and the
    equivalence of scales was a mere coincidence as the cadre of service of
    N.D.S. Instructors was a separate one under the National Discipline
    Scheme/ National Fitness Corps Organ_isation and therefore, there was no
    violation of the principle of equal pay for equal work. It was also contended
D   that it was incorrect on the part of the petitioners to say that there were
    two grades, one for primary school teacher and another for secondary
    school teacher; and that the work was equal; the grades were based on
    qualifications, and the responsibilities were entirely different, and hence
    the principle of equal pay for equal work could not apply to the instant
E   case; in short, where gradation was based purely on the qualification, the
    petitioners could not have a valid complaint.

          Dismissing the Writ Petition, this Court,

F       HELD: 1. 5 non-gazetted categories of N.D.S. employees namely, (1)
  Supervisor, (2) N.D.S. Instructor Senior Grade I, (3) N.D.S. Instructor
  Senior Grade II, (4) N.D.S. ·Instructor Junior Grade I and, (5) N.D.S.
  InstructOr Junior Grade II which later on came to be merged with Junior
  Grade I with effect from 1.3.71, came to be fixed on different pay scales.
G Such fixation of pay scale was based on the respective qualifications and
  experience as per the Recruitment Rules. Therefore, the principle of equal
  pay for equal work would not apply to the instant case. [9-F-G]

          Mewa Ram Kanojia v.All India Institute of Medical Sciences and Ors.,
H   (1989] 1 S.C.R. 957, relied on.
                      TEACHERS' ASSCN. v. U.O.I.                            3

       2.1. There are no different scales one for primary school teacher and A
another for secondary school teacher. Therefore, the assumption of the
petitioners that they have been fixed on the pay scale of primary school
teachers is not correct. The N.D.S. Instructors, Junior Grade I were
recruited for a specific purpose. Their pay scale of Rs.110-200, was
deliberately fixed. There was no mistake about it. That is evident from B
G.S.R.. 336 dated 24th February, 1961 issued by Ministry of Education,
Government of India. The N.D.S. Instructors did not have desirable
_qualification of diploma from a recongnised Physical Training Institute as
listed out in the Schedule to the said G.S.R. Therefore, notwithstanding
the fact that they were assigned the job of Physical Education Teacher, the
petitioners could not be given the pay scale of Physical Education Teacher       c
of Central Schools. The Third Pay Commission also did not recommend
the revised pay scales for two reasons; (1) they were either temporary or
quasi-permanent or (2) were in the process of transfer to the State service.
Therefore, there is no mistake in fixing the scale of pay. [9-C-FJ
                                                                                 D
      2.2. Merely because Item 8 of the statement attached to the Onice
Memorandum dated 30th September 1975 dealing with the revision of pay
scales of Principal and teachers of Kendriya Vidyalaya Sangathan, talks
of primary teacner it does not mean primary school grade. The relevance
is that the pay scale of primary teachers of Kendriya Vidyalaya is Rs.330-       E
560 in their pay structure. This was cited as an example to the States for
pay fixation. It was a mere coincidence that the revised pay scale of Junior
Grade I Instructors was equivalent to that of primary teachers of Kendriya
Vidyalaya Sangathan. They did not have the essential qualification to be
taken in service in Central Schools as Physical Education Teachers. They
could not be given their pay scales regardless of the fact that they were        F
doing the duties of physical Education Teachers. Therefore, wl1ere the
responsibilities are different and the nature of work is also different it
cannot be held that the petitioners will be entitled to the scale of pay as is
applicable to secondary school teachers. [10-F, G; 11-D]
                                                                                 G
      State of U.P. and Ors. v. J.P. Chpurasia and Ors., [1980] 1 S.C.C. 121,
relied on.

      Union of India &Anr. v. R.G. Kashikar and Am:, A.l.R. 1986 S.C. 431,
referred to.                                                                     H
    4                     SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A         ORIGINAL JURISDICTION : Writ Petition (C.) No.861 of 1990.

          (Under Article 32 of the Constitution of India).

          M.K. Ramamurthy and V.J. Francis for the Petitioners.

          V.C. Mahajan and B. Parthasarathi for the Respondent.

          The Judgment of the Court was delivered by

          MOHAN, J. The writ petition under Article 32 of the Constitution
    of India has been preferred by the National Federation of State NFC
    (Physical Education) Teachers' Associations.  '
c
          Petitioner No.l (Federation) has a membership of 7,000 Physical
    Education Teachers working in the. various schools other than primary
    schools in the country.

          A scheme known as 'National Discipline Scheme' (for short NOS)
D was started in 1954 for inculcating discipline and imparting training in mass
    drill among the younger generation in the refugee camps and colonies. In
    1958 the scheme was transferred to the Ministry of Education and was
    enlarged to cover a number of high schools. In 1963, the new integrated
    programme known as "National Fitness Corps" (for short NFC) was ap-
E   proved for adoption in schools. It was decided that the instructors working
    un~er N.D.S. were to function in the schools under the administrative
    control of the State Governments. They should be transferred to States and
    merged with the cadre of Physical Education Teachers of the States.

           The pay scale of N.F.C. instructor previously known as N.D.S. in-
f   structor Junior Grade I was Rs.110-200 on 31.12.66. This was revised from
    time to time. As on 1.1.73 it was Rs.330-560. This was revised to Rs.118-225
    with effect from 1.1.67. The petitioner would contend that the pay scales
    were those which were applicable to teachers in primary schools. The
    fixation of the said pay scale of the primary school teacher instead of the
    pay scale of secondary school teacher was given to the N.F.C. instructors
G   by mistake. Though there were subsequent revisions, the pay scale ap-
    plicable to a secondary teacher was denied.

          Representations were made in this behalf but were of no avail.

          Some of the teachers approached the High Court of Karnataka by
H means of a writ petition. A writ of mandamus was ultimately issued
               TEACHERS' ASSCN. v. U.0.I. [MOHAN,J.)                        5

directing the Central Government to extend the revision of pay. That             A
appeal was dismissed and the judgment is reported in Union of India &
Another v. R.G. Kashikar and Anr., AIR 1986 S.C. 431.

      After the judgment a representation was filed that N.D.S. instruc-
tions were at par with Physical Education Teachers discharging duties in
middle, high and higher secondary schools. Therefore, they were entitled         B
to be treated and be given a scale of pay of secondary school teachers.

      Though several circulars were issued in this regard there had not
been a proper fixation of scale of pay. In fact, they are entitled to be given
the scale of pay that is applicable to the Physical Education Teachers in        C
middle, high and higher secondary schools and not that of primary school
teachers. It is under these circumstances, a writ for mandamus for a
direction to the respondent to grant the scale of pay applicable to the
Physical Education Teachers in secondary schools, is prayed for.
                                                                                 D
       In the counter affidavit filed on behalf of Union of India it is averred
.that the contention of the petitioners that the pay scale of Junior Grade I
 N.D.S. instructors was revised to Rs.330- 560 as on 1.1.73 was done by
 mistake, is not correct. The N.D.S. Junior Grade I instructors were
 recruited for a specific purpose in the pay scale of Rs.110-200. Their
 essential qualification was matriculation. A diploma from a recognised E
 physical training institute was a desirable qualification and not an essential
 one. Almost all the NOS Instructors were not having this desirable
 qualification of diploma in physical education. Therefore, though they were
 assigned the job of physical education teacher, they could not be given the
 scale of a physical education teacher of Central Schools etc. Between F
 1963-65, on the recommendation of a Committee chaired by Dr. Kunzuru,
 it was decided in consultation with State Education Authorities to transfer
 the services of these NOS Instructors to the State Governments, in whose
 schools these Instructors were already working. In 1973, the third Central
 Pay Commission could not recommend revised scales for these Instructors
 because they were either temporary or quasi-permanent and were in the G
 process of transfer to the states' services. In 1986 and 1988, however, the
 scales of these Ex-Instructors were revised, keeping in view the recommen-
 dations of the Illrd Central Pay Commission. Therefore, it is not correct
 that their scale was revised by mistake and !hat they we.re denied the
 benefits of Illrd Pay Commission. There is no such categorisation of pay H
    6                        SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A scales of school teachers as secondary school teachers' scales, primary
    school teachers' scales, etc. Instead, the scales are based on the qualifica-
    tion of the teachers, viz. PGT, TGT, PET, etc. In view of this fact, the scale
    of pay given to the petitioners is correct on the basis of their qualification
    and as per their recruitment rules. There were five non-gazetted categories
    of NDS Employees whose service were transferred to the states:-
B
                (i) Supervisor,

                (ii) NOS Instructor, Senior Grade I,

                (iii) NOS Instructor, Senior Grade II,
c
                (iv) NOS Instructor, Junior Grade I, and

                (v) NOS Instructors, Junior Grade II (merged with that
                    of Junior Grade .I w.e.f. 1.3.71).
D
                Their respective scales are as follows:-

        SI.             Category              Old Scale as on   New Scale As on
                                                  1.1.67            1.1.73
        1.    Supervisor                           Rs.325-75      Rs.1100-1600
E
        2.    NOS Instructor Sr. Gd. I            Rs.210-320        Rs.550-900
        3. NDS Instructor Sr. GD. II              Rs.150-240        RsA40-750
        4.    NOS Instructor Jr. Gd. I            Rs.110-200        Rs.330-560
        5.    NOS Instructor Jr. Gd. II            Rs.95-155        Rs.330-560
F
    These scales were based on the respective .<(ualifications and experience as
    per the recruitment rules, Accordingly, the Sr. Grade II Instructors were
    given the scale of ,Rs.150-240 (Rs.440-750 revised as on 1.1.73), the Junior
    Grade I Instructors Rs.110-200 (Rs.330-560, revised as on 1.1.73), and
    Junior Grade II Rs.95-155 (Rs.330·560, revised as on 1.1.73). Therefore,
G   the contention of the petitioners is not correct. The relevance of the
    Kendriya Vidyalayas' pay scales, here, is due to the fact that they have the
    pay scale of Rs.330-560 for their primary teachers in their pay structure
    and the states were cited the example of pay fixation as done by the
    Kendriya Vidyalaya Sangathan. It was a mere coincidence that the revised
B   scales of Jr. Gd.I Instructors was equivalent to that of primary teachers of
               TEACHERS' ASSON. v. U.0.1. [MOHAN, J.]                     7

KVS. Also, since they were not having the essential qualification for A
Central Schools' PETs, they could not be given their scales irrespective of
the fact that they were doing the duties of physical education teachers. The
category of Sr. Gd.II, NOS Instructors have been given these scales on the
basis of their qualifications and experience. However, the equivalence of
scales is mere coincidence as the cadre of service of NOS Instructors was
a separate one under the National Oiscip,ine Scheme/National Fitness B
Corps Organisation which was created, temporarily, for inculcating dis-
cipline and imparting trading in mass drill among the children of refugee
camps/colonies, originally in the Ministry of Rehabilitation in 1954 '.\Jld
later transferred to the Ministry of Education in 1958. Thus it is submit.ed
that there is no violation of the principle of equal pay for equal work.       c
       M;. M.K. Ramamurthy, learned counsel for the petitioners would - ....
urge that the principle of equal pay for equal work is an accepted principle
of law as on today. Therefore, in as much· as if the petitioners are not
working in primary schools, they cannot be fixed on the pay scale as
applicable to primary school teachers. On the contrary, they would be D
entitled to the scale of pay as applicable to secondary school teachers and
the revision thereof.

      When clear instructions have been issued by the Government of India
for upgradation, the same cannot be ignored.
                                                                               E
      While the Kendriya Vidyalaya teachers have been fixed on the pay
scale of Rs.330-560 for primary teachers there is no justification whatever
to treat the teachers of the petitioner-Federation as belonging to that
Grade of primary school teachers when in fact, not one teacher belonging
to the petitioner-Federation is working in primary s~hool. Thus, it is clear   F
case of a denial of equal pay for equal work.

       In opposition to this, Mr. V.C. Mahajan, learned counsel for the
Union of India would urge that the rule of equal pay for equal work does
not come into play at all in this case. It is incorrect to urge on the part of
the petitioners as if there are two grades one for primary school teacher G
and another for secondary school teacher. The grades are based on t~-e
qualifications. Where such is the position the petitioners cannot have any
complaint. .In fact this Court in Mewa Ram Kanojia v. All India Institute of
Medical Sciences &·Ors., [1989] 1 SCR 957 has uphe1d such gradation based
on qualification; That is precisely the position here.                         H
    8                      SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A           It is also not correct to contend on the part of the petitioners that
     the work ·is equal. The responsibilities are entirely different. In such a case
     the principle of equal pay for equal work cannot apply as laid down by this
     Court in State of U.P. and Ors., v. J.P. Chaurasia and Ors., [1989] 1 SCC
     121. The relevance of Kendriya Vidyalaya pay scale is due to the fact that
     they have the pay scale of Rs.330-560 for the primary teacher in their pay
B    structure. This was cited as an example of pay fixation as was Qone by
     Kendriya Vidyalaya Sangathan. Beyond this, this has no application. In
     short, it is submitted that where gradation is based based purely on the
     qualification the petitioners cannot have a valid complaint.

c         The short question that · arises for consideration is whether the
    teachers belonging to the petitioner-Federation are entitled to a pay scale
    of Rs.440-750 as is applicable to the secondary school teachers with effect
    from 1.1.73.
                                                                                       (



D          National Discipline Scheme was stated by.the Ministry of Rehabilita-
    tion in the ye(l.r 1954. This programme was launched under the scheme for
    instituting discipline and imparting training .in mass drill among the
    younger generation in the refugee camps and colonies. In the year 1958,
    the scheme was transferred to the Ministry of Education. It was enlarged
    to cover a number of high schools. Based on the recommendations of
E   Kunzuru Committee, the scheme was integrated. By such integration a new
    programme known as National Fitness Corps' was formed.

        In February 1965, a meeting of State Education Secretaries and the
  State Directors of the Public Instruction of the various places took place.
F It was decided that the N.D.S. instructors could function in the schools
  under the administrative control of the State Governments. They would be
  transferred to the States and merged with the cadre of Physical Education
  Teachers of the respective States. Pursuant to this, the Central Government
  informed the States to take over the administrative control of the N.F.C.
G teachers and absorb them in the State service into equivalent cadre. Any
  expenditure on the staff would be reimbursed by the Government. It was
  made clear by the Central Government that the pay and allowances of
  N.F.C. instructions/teachers will be protected. Since the scheme was intro-
  duced in the middle school classes, namely, Classes V to XI and not in the
  primary classes, the petitioners would urge that they cannot be fixed on the
H pay scale as applicable to primary school teachers.
               TEACHERS' ASSCN. v. U.O.I. [MOHAN, J.]                      9

      The pay scale of N.F.C. instructor earlier known as N.D.S. Instructor A
Junior Grade I as on 31.12.66 was Rs.110-200. This was revised to Rs.118-
225 with effect from 1.1.67. Again, on 1.1.73 this was re\'ised to Rs.330-560.
Since these pay scales according to the petitioners were applicable to
primary school teachers in so far as the scheme was made applicable to
middle school the fixation of this scale was wrong. Therefore, they should
be fixed on the revised scale of pay as applicable to secondary grade
                                                                               B
teachers at Rs.440-750 with effect from 1.1.73.

       From a perusal of the record it is seen that there are no different
scales one for primary school teacher and another for secondary school
teacher. Once this aspect of the matter becomes clear it will follow that      c
the assumption on the part of the petitioners that they have been fixed on
the pay scale of primary school teachers is without foundation. The records
also reveal that the N.D.S. instructors Junior Grade I were recruited for a
sp~cific purpose. Their pay scale of Rs.110-200, was deliberately fixed.
There was no mistake about it. That is evident from G.S.R. 336 dated 24th D
February, 1961 issued by Ministry of Education, Govt. of India. In asmuch
as N.D.S. instructors did not have desirable qualification of diploma from
a recognised Physical Training Institute as listed out in the Schedule to the
said G.S.R. Notwithstanding the fact that they were assigned the job of
Physical Education Teacher, they could not be given the pay scale of
Physical Education Teacher of Central Schools because of what is stated E
ab.ove. The Third Pay Commission also did not recommend the revised pay
scales for two reasons: (1) They were either temporary or quasi-permanent
 or (2) were in the process of transfer to the State service. Therefore, the
 mistake in fixing the scale of pay as alleged by the petitioners is not tenable.
                                                                               F
       As rightly submitted by the learned counsel for the respondent, 5
non-gazetted categories of N.D.S. employees namely, (1) Supervisor (2)
N.D.S. Instructor Senior Grade I (3) N.D.S. Instructor Senior Grade II (4)
N.D.S. Instructor Junior Grade I and (5) N.D.S. Instructor Junior Grade
II which later on came to be merged with Junior Grade I with effect from
1.3.71, came to be fixed on different pay scales. Such fixation of pay scale G
was based on the respective qualifications -and experience as per the
Recruitment Rules. Where, therefore, such is the position, we are unable
to hold that principle of equal pay for equal work would apply. This Court
had occasion to point out in Mewa Ram Kanojia v. All India Institute of
Medical Sciences and Ors., [1989] 1 SCR 957 @ 962 that:                        H
         10                    SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

     A               "The doctrine of 'Equal Pay for Equal Work' is not
                 abstract on, it is open to the State of prescribe different
                 scales of pay for different posts having regard to educa-
                 tional. qualifications, duties and responsibilities of the
\   ..
                 post. The principle of 'Equal Pay for Equal Work' is
                 applicable when employees holding the same rank per-
    B            form similar functions and discharge similar ~uties and
                 responsibilities are treated differently."

                Then the question arises as to what is the relevance of Kendriya
         Vidyalaya's pay scales. By the Office Memorandum dated 30th of Septem-
     C   ber, 1975 dealing with the revision of pay scales of Principal and teachers
         of Kendriya Vidyalaya Sangathan, .it was stated· that the Government
         approved the introduction of revised scales of pay for Principals and some
         categories of teaching staff of Kendriya Vidyalaya Sangathan as shown in
         the attached statement with effect from 1.1.73. Item 8 of the Statement
     D   reads:

                              Present Scale                  Revised Scale
         Primary Teacher      165-10~-215-15-275-            330-10-350-EB-380-
         (0rdinary Grade)     EB-15-350                      15-500- EB-15-560
                              (for higher secondary/         (for higher secondary/
    E                         Matric trained)                Matric Trained)

                Merely because Item 8 talks of primary teacher it does not mean
         primary school grade. The relevance is that the pay scale of primary
         teachers of Kendriya Vidyalaya is Rs.330-560 in their pay structure. This
     F   was cited as an example to the Statess for pay fixation. It was a mere
         coincidence that the revised pay scale of Junior Grade I instructors was
         equivalent to that of primary teachers of Kendriya Vidyalaya Sangathan. It
         should be ·remembered that they did not have the essential qualification to
         be taken in service in Central Schools as Physical Education Teachers.
         Therefore, they could not be given their pay scales regardless of the fact
    •G   that they were doing the duties of Physical Education Teachers. This Court
         had occasion to .consider parity in employment and the pay fixation thereof,
         in State of U.P. and Ors. v. J.P. Chaurasia and Others, (1980) 1 SCC 121 at
                                                         I

         page 136 it was thus held:

     l           "In the present case, all Bench Secretaries may do the
                TEACHERS' ASSCN. v. U.O.l. [MOHAN,J.]                    11

         same work, but their quality of work may differ. Under                A
         the rules framed by the Chief Justice of High Court, Bench
         Secretaries Grade I are selected by a Selection Commit-
         tee. The selection is based on merit with due regards to
         seniority. They are selected among the lot of Bench
         Secretaries Grade II. When Bench Secretaries Grade II
                                                                               B
         acquire experience and also display more merit, they are
         appointed as Bench Secretaries Grade I. The rules thus
         make a proper classification for the purpose of entitle-
         ment to higher pay scale. The High Court has completely
         overlooked the criterion provided under the Rules. The
         merit governs the grant of higher pay scale and that merit            c
         will be evaluated by a competent authority. The classifica-
         tion made under the Rules, therefore, cannot be said to
         be violative of the right to have equal pay for equal work"

      Therefore, where the responsibilities are different and the nature of
work is also different the petitioners cannot be heard to contend that they    D
will be entitled to the scale of pay as is applicable to secondary school
teachers.

      In the result, we find no merit in the writ petition and accordingly
the writ petition is dismissed with no orders as to cost.

N.P.V.                                                   Petition dismissed.