Sabhajeet Yadav, J.
1. By this writ petition the petitioner who is a part time Lecturer in the institution in question has moved to this Court seeking relief in the nature of writ of certiorari quashing the term and conditions of his appointment letter which presides that he will be paid honorarium at a rate of Rs. 10/- per period and further writ in the nature of mandamus directing the respondent to pay him regular and equal remuneration/salary as being paid to a lecturer teaching in the intermediate classes in the subjects in question in the institution which is on grant-in-aid list of the State Government and further direction of payment of arrears of salary and interest at the rate of 10% thereon has also been sought for. By amendment application moved in the writ petition anther relief has been sought in the nature of mandamus directing the respondent to treat the petitioner as a regular teacher and quash the provisions of para 6 of the Government order dated 10.8.2001.
2. The facts of the case in brief are that Buba Gaya Das Technical Inter College Barhaj, Deoria is privately managed recognized institution under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as U.P. Act No. 2 of 1921'. Vide order/letter dated 12.8.1993 contained in Annexure-1 of the writ petition, the Secretary, U.P. Secondary Education Board (hereinafter referred to us 'Board') Communicated to the Manager of the institution that under the provisions of Section 7-A of the 'U.P. Act No. 2 of 1921' the 'Board' with previous approval of the State Government recognized the institution for imparting the instruction in the intermediate classes in Physics, Chemistry, Biology and Mathematics subjects with conditions indicated in the letter. In pursuance there-of the committee of management of the institution has appointed the petitioner for teaching intermediate classes in the subject of Biology as a part time teacher on a honorarium payment of Rs. 10/- per period vide letter of appointment issued by manager of the institution dated 26.8.1993 (Annexure-2 of the writ petition). In pursuance thereto the petitioner has immediately joined the institution on the aforesaid post as a part time teacher in Biology by submitting his joining report on 27.8.1993 (Annexure-3 of the writ petition). According to the petitioner, that prior to his appointment as such he was fully eligible and qualified for the post and duly selected by the selection committee constituted for the purpose by the Committee of Management of the institution. Since the aforesaid date of joining on 27.8.1993 he is continuously teaching the students of Intermediate and High School classes in Biology subject but being paid very meagre remuneration at a rate of Rs. 10/- per period although he is teaching the classes like other regularly appointed Lecturers in the institution in question who are getting remuneration at a rate of Rs. 12,000/- per month, whereas the petitioner is being paid for the same and similar work a sum of rupees not more than 500/- per month. According to the petitioner that although he has been appointed as a part time lecturer for teaching Biology subject in the intermediate classes but besides the intermediate classes he is also teaching the students of High School in the aforesaid subject and is performing duties and responsibilities like a regular lecturer as a invigilator as well as valuar of answer books in the examinations conducted by the 'Board'. In this regard he has also filed several certificates issued by the relevant authorities from time to time along with paper book of the writ petition. It is further stated that for redressal of his grievances several representations have been moved by the petitioner to the authorities concerned as contained in Annexure Nos. 15, 16, 17 and 18 of the writ petition but since no heed has been paid over the same, therefore, he has been compelled to file above noted writ petition. By way of amendment application the petitioner has also filed a Government order dated 10^th August, 2001 which has been issued prescribing eligibility, procedure for recruitment and other term and conditions of services of part time teacher including the provisions regarding their remunerations, disciplinary action and termination of services. The petitioner has challenged the provisions of para 6 of aforesaid Government order on various grounds mentioned in the amendment application wherein it is stated that under the provisions of Sub-section 5 of Section 7-AA the power has been conferred upon the State Government to fix honorarium to be paid to the part-time teacher by a general or special order issued in this behalf The power in this regard cannot he delegated to the management of the institution so far as fixation amount of payment of salary as honorarium is concerned. In substance the petitioner has alleged that since he is discharging duties and responsibilities at par with regular lecturer in the institution in question and also eligible and qualified for the post and has been duly selected by the committee of management of the institution, therefore, the respondents cannot discriminate the petitioner in the matter of payment of salary which is being paid to the regular lecturer teaching the aforesaid subject. The action of respondents is violative of Article 14 and Article 39(d) of the Constitution of India. It is also alleged that the services of petitioner are not comparable from the services of "skilled workman" and term and conditions of the services fixed by the Government in the aforesaid Government order is highly unreasonable and arbitrary inasmuch as runs contrary to the several decisions of Apex Court mentioned in the amended pleadings of the writ petition. It is further alleged that despite request made to the Director through the representations made to him and fulfillment of conditions under relevant Government orders including the Government order 20^th November, 1977, the Director of the Secondary Education who is competent authority to create and sanction the post for the purpose of payment of salary from the State Exchequer did not create such post by now although the petitioner is continuously working on the aforesaid post since very inception of his appointment till the date.
3. On behalf of respondents of the writ petition three detailed counter affidavits have been filed, one by Associate District Inspector of Schools, Deoria, another by Joint Secretary, Secondary Education, Government of Uttar Pradesh and the third by the management of the institution in question. In the counter affidavit filed on behalf of District Inspector of Schools, Deoria, respondent No. 3 it is stated that under the provisions of Section 7-A of U.P. Intermediate Education Act, the 'Board' with previous approval of the State Government has recognized the institution in some new subjects or group of subjects for intermediate classes on 12.8.1993 and while granting such recognition the 'Board' has directed the committee of management of the institution to make payment of salary of teachers to be employed on account of such recognition from its own resources. The recognition so granted was without sanction of finance (Vittavihin). It is further stated that since the petitioner was appointed for imparting instruction in the subject which was recognized by the 'Board' without financial sanction to it and without creating any post for such appointment by competent authority, as such the liability of payment of salary to the petitioner cannot be fastened upon the State Exchequer. In para 11 of the counter affidavit it has been stated that except to the teachers appointed for teaching Science subjects in intermediate classes, other teachers already working in the institution against duly sanctioned posts are being paid salary from State Exchequer under the provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, herein after referred to as U.P. Act No. 24 of 1971. Since the petitioner's appointment was not made against duly sanctioned post of a teacher, therefore, the relief for payment of salary to the petitioner from State Exchequer is liable to be rejected and the petition is liable to be dismissed. Another counter affidavit has been filed on behalf of respondents No. 1, 2 and 3 of the writ petition sworn by one Sri Shiv Prakash Gupta, Joint Secretary, Secondary Education, Government of Uttar Pradesh, Lucknow also reiterates the averments made in the counter affidavit filed by District Inspector of Schools, Deoria, but on account of direction of this Court dated 19.3.2004 the same has been filed to place Government order dated 10^th August, 2001 which has been issued in purported exercise of power of State Government under Section 7-AA (4) and (5) of the U.P. Act No. 2 of 1921. One more counter affidavit has also been filed on behalf of respondent No. 4 i.e. committee of management of the institution wherein in para 7 of the counter affidavit it has been stated that the petitioner has been appointed on the post of Biology lecturer in pursuance of appointment order dated 26.8.1993 and joined the service on 27.8.1993. From the bare perusal of which, it seems that the committee of management of the institution has virtually admitted the averments made in the writ petition.
4. I have heard learned counsel for the petitioner Sri Yogesh Agrawal, Advocate and learned Standing counsel on behalf of respondents No. 1, 2 and 3 as well as Sri Jai Bahadur Singh counsel for the respondent No. 4 of the writ petition and also perused the record.
5. Having gone through rival contentions and submissions made by the counsel of parties and on perusal of records following questions arise for consideration of this Court:
(1) As to whether part time teachers appointed under Section 7-AA of the U.P. Act No. 2 of 1921 are entitled for payment of salary under U.P. Act No. 24 of 1971 ?
(2) As to whether the liability of payment of salary to the petitioner as part time lecturer in the institution in question can be fastened upon the State Exchequer in absence of sanction and creation of post by the competent authority ?
(3) As to whether the petitioner is entitled for payment of salary at par with the salary payable to regular lecturer of recognized institution receiving grant-in-aid from State Exchequer on a principle of equal pay for equal work ?
(4) As to whether in given facts and circumstances of the case any direction for treating the petitioner as regular lecturer and/or direction to regularise him and/or direction to frame rule of regularisation can be given ?
(5) As to whether the paragraph 6 of the Government order dated 10^th August, 2001 is ultra virus to the provisions of Section 7-AA (5) of the U. P. Act No. 2 of 1921 ?
(6) As to whether the terms and conditions of employment of petitioner in respect of payment of honorarium to him at a rate of Rs. 10/- per period for teaching the Intermediate classes is violative of provisions of Section 23 of the Contract Act and provisions of Articles 14 and 23 of the Constitution of India?
6. Now the question arises for consideration is that (i) As to whether a part-time teacher appointed under Section 7-AA of U.P. Act No. 2 of 1921 is entitled for payment of salary under U.P. Act No. 24 of 1971; (ii) As to whether liability of payment of salary to the petitioner can be fastened upon the State Exchequer in absence of creation of necessary post by competent authority. The aforesaid questions are intermixed and related to each other, therefore, it is necessary to deal with them together. In this regard the submission of learned counsel for petitioner is that in view of decision of the Hon'ble Apex Court rendered in J.P. Unnikrishnan's case (A.I.R. 1993 S.C. 2178) the right of education has been recognized as one of the facet of fundamental right guaranteed under Article 21 of the Constitution of India. The aforesaid guarantee cannot be ensured unless the teacher like petitioner is paid their full remuneration by the respondents i.e. by the state authorities.
7. Before I proceed to deal with the aforesaid submission of the petitioner in the light of law laid down by the Apex Court it is necessary to examine relevant provisions of statute having material bearing with the issue in question. For ready reference the provisions of Section 7-A, 7-AA and 7-AB of U.P. Act No. 2 of 1921 are being reproduced as under :-
"7-A. Recognition of an institution in any new subject or for a higher class.- Notwithstanding anything contained in Clause (4) of Section 7-
(a) the Board may, with the prior approval of the State Government, recognize an institution in any new subject or group of subjects or for a higher class;
(b) the Inspector may permit an Institution to open a new section in an existing class".
"7-AA. Employment of part-time teachers or part-time instructors.- (1) Notwithstanding anything contained in this Act, the management of an institution may, from its own resources, employ-
(i) as an interim measure part-time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any Section of an existing class for which permission is granted under Section 7-A;
(ii) part-time instructors to impart instructions in moral education or any trade or craft under socially useful productive work or vocational course.
(2) No recognition shall be given and no permission shall be granted under Section 7-A, unless the Committee of Management furnishes such security in cash or by way of Bank guarantee to the Inspector as may be specified by the State Government from time to time.
(3) No part-time teacher shall be employed in an institution unless such conditions may be specified by the State Government by order in this behalf are complied with.
(4) No part-time teacher or part-time instructor shall be employed unless he possesses such minimum qualifications as may be prescribed.
(5) A part-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf.
(6) Nothing in this Act shall preclude a person already serving as a teacher in an institution from being employed as a part-time teacher or a part-time instructor under Section 7-AA".
"7-AB. Exemption.- Nothing in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act No. 24 of 1971), or the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982 (U.P. Act No. 5 of 1982), shall apply in relation to part-time teachers and part-time instructors employed in an institution under Section 7-AA."
8. From a bare reading of the aforesaid provisions of law it is clear that the 'Board' with prior approval of the State Government is empowered to recognize an institution in any new subject or group of subjects or for a higher class and inspector may permit an institution to open a new section in an existing class. In order to cater the need of the institution the provisions of Section 7-AA have been enacted by the legislature of State which provides that notwithstanding anything contained in this Act, the management of the institution as interim measure may employ, part time teachers from its resources for imparting instructions in any subject or group of subjects for which recognition is given or in any section of an existing class for which permission is granted under Section 7-A of U.P. Act No. 2 of 1921. Sub-section (2) deals with prior condition, which is required to be complied with by the committee of management of the institution before such recognition under Section 7-A is given to the institution. Sub-section (3) provides that no part time teacher shall be employed in an institution unless such conditions as may be specified by the State Government by order in this behalf are complied with. Sub-section (4) further provides that no part time teacher or part time instructor shall be employed unless he possess such minimum qualifications, as may be prescribed. Sub-section (5) provides for payment of honorarium to the part time teacher or part time instructor, as may be fixed by the State Government by general and special order in this behalf.
9. Thus a joint reading of the aforesaid provisions leads to a conclusion that a part time teacher employed under Section 7-A cannot invoke the provisions of U.P. Act No. 24 of 1971, which contains provisions for payment of salary to the teachers and other employees of recognized institution, which are grant-in-aid of the State Government for payment of salary from the State Exchequer for simple reason, that under Section 7-A.B. of U.P. Act No. 2 of 1921 the applicability of the provisions of U.P. Act No. 24 of 1971 have been exempted. The provisions of statute contained therein are only existing law casting an obligation to pay salary to the teachers and other employees of the institution recognized under the aforesaid U.P. Act No. 24 of 1971. Admittedly the petitioner's appointment has been made under the provisions of Section 7-AA of the Act as a part time teacher/lecturer in the institution, therefore, he cannot claim payment of salary under the provisions of U.P. Act No. 24 of 1971 as the provisions of the aforesaid Act are exempted from applicability in respect of part time teacher employed under Section 7-AA of U.P. Act No. 2 of 1921.
10. At this juncture it is also necessary to point out that in Regulation 19 under Chapter 11 of the Regulations framed under U.P. Act No. 2 of 1921 it is laid down that where any person is appointed or any promotion is made on any post of the head of the institution or teacher in contravention of the provisions of this Chapter or against any post other than a sanctioned post, the Inspector shall decline to pay salary and other allowances, if any to such person where the institution is covered by the provisions of U.P. Act No. 24 of 1971 and in other case shall decline to give grant for salary and allowances in respect of such person. For ready reference the provisions are reproduced as under :
"19. Where any person is appointed as, or any promotion is made on any post of head of institution or teacher in contravention of the provisions of this Chapter or against any post other than a sanctioned post of the Inspector shall decline to pay salary and other allowances, if any to such person where the institution is covered by the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, and in other cases shall decline to give any grant for the salary and allowances in respect of such person ";
11. From bare reading of the aforesaid provisions of the regulation it is emphatically clear that Inspector is not obliged to pay salary and other allowances to the teachers and other employees of the institution receiving grant-in-aid out of state fund and recognized under U.P. Act No. 24 of 1971, who are not appointed against sanctioned posts. Admittedly the petitioner is appointed as part-time teacher not against any sanction post, therefore, the Inspector cannot pay him salary and other allowances from the State Exchequer.
12. In this connection it is also necessary to point out that a Division Bench of this court in case of Mahipal Singh Pawar and Ors. v. State of U.P. and Ors. reported in 1992 (2) UPLBEC 1497, in para 13 and 14 of the judgment, a specific question had framed as to whether on account of grant of recognition Under Section 7-A of U.P. Act No. 2 of 1921 by the Board with prior approval of the State Government in any new subject or group of subject or for a higher class, and on permission given by Inspector to open a new section in an existing class in an institution itself amount to creation of a post for a teacher in that subject ? The Division Bench of this court has answered the aforesaid question in negative. For ready reference the observation made by Division Bench of this court is reproduced as under :-
"13. In deciding the above question, it would be necessary to examine the provisions of Section 7-A of the Intermediate Education Act, read with Section 9 of the U.P. Act of 1971. These provisions are already quoted in preceding paragraphs."
"14. The provision of Section 9 of the High School and Intermediate Colleges (Payment of Salaries) Act, 1971 is reproduces as under:
"9. Approval for posts.- No institution shall create a new post of teacher or other employee except with the previous approval of the Director, or such other officer as may be empowered in that behalf by the Director."
The perusal of the aforesaid provisions clearly go to show that the fact that the institution is approved and recognized by the Board for the first time or any new subject or group of subjects or for a higher class or addition of selection to a existing class shall have no effect unless it is approved by the State Government. It is also made clear that the permission to start teaching of a new subject or opening a class or section by D.I.O.S. shall be of no consequence unless approved by the State Government e.g. Director of Education. The number of posts for teacher and other employee of an institution is required to be created and sanctioned by the Director of Education according to the prescribed norms and standard laid by the Education Department. It is the sole domain of the Director of Education to sanction and create posts of teacher and other staff. If the management committee on the D.I.O.S. considers and decides the number of posts needed far the institution according to the strength of students, it is of no consequences. The power of creation and sanctioning posts for institution is specified. It cannot be said that the D.I.O.S. approved and permitted opening of a section or a class or approved teaching of a new subject, itself would amount to creation of a post, fastening legal duty and obligation of paying salary to such staff under the Act No. 24 of 1971."
13. A similar controversy has also been decided by the Hon'ble Apex Court in case of Director of Education and Ors. v. Gajadhar Prasad Verma, A.I.R. 1995 S.C. 1121
in which while considering the provisions of Section 9 of U.P. Act No. 24 of 1971 in respect of creation and sanction of post for grant of salary to the employees of the institution recognized under U.P. Act No. 24 of 1971, the Hon'ble Apex Court held that prior approval of Director or any other authorized officer for creation of post is necessary condition precedent for reimbursement of salary payable to such teachers by management of the institution. For ready reference para 4 of the decision is being quoted as under: -
"4. Be that as it may, the crucial question is whether the school of the respondent can claim reimbursement of the salary of such Clerk from the Government? The U.P. High Schools & Intermediate Colleges (Payment of Salaries of Teachers & other Employees) Act 24 of 1971 (for short 'the Act'), regulates the payment of the salary by the Government. Section 9 is relevant in that behalf. It provides that no institution shall create a new post of teacher or other employee except with the previous approval of the Director or such officer as may be empowered in that behalf by the Director. Admittedly, no steps have been taken by the Management to have obtained prior approval of the Director or any other authorized officer for creation of the additional post of Clerk. The prior approval of the Director or the empowered officer is a condition precedent and mandatory, for creation of an additional posts (sic) the government had before it the relevant data of the posts for which the grant of aid was sanctioned. To make the government to reimburse the salary of an additional teacher or an employee, the government should have similar relevant material and data to have it duly verified and decision taken to grant sanction of the additional post. The inspecting and reporting officers are enjoined to make personal inspection and submit the report of the existing correct facts. The dereliction of duty or incorrect or false reports would be misconduct entailing them in disciplinary action for dismissal from the posts held by them. Therefore, the failure to obtain prior approval disentitles the Management to obtain reimbursement of the salary of such teacher or other employee."
14. In case of Gopal Dubey v. DIOS Maharajganj and Ors. reported in (1999) 1 UPLBEC-1
a Full Bench of this court after examining the provisions of Section 7-A and Section 7-AA and Section 7-A.B. of U.P. Act No. 2 of 1921, Regulation 19 of Chapter II of Regulation framed under the aforesaid Act and provisions of Section 9 and 10 of U.P. Act No. 24 of 1971 has held that Sanction of the post by a competent authority i.e. a Director, Secondary Education or person authorized by him is a condition precedent for payment of salary to a teacher or an employee of the Institution from the state exchequer. In this case while approving the decision rendered by a Division Bench of this court in Mahipal Singles case (Supra) and relying upon the decision of Hon. apex Court rendered in Gajadhar Prasad Verma's case (supra) and after analyzing the situation in detail in para 21 and 22 of the decision, it has been held that on recognition being granted by the Board in respect of the subject in an institution Under Section 7-A of U.P. Act No. 2 of 1921, it will not be presumed that the post of lecturer in such subject stand sanctioned by Director of Education Under Section 9 of the Payment of the Salary Act. For ready reference para 21 and 22 of the decision of Full Bench is being reproduced as under :-
"21. On the other hand, the decision of this Court in the ease of Mahipal Singh Pawar and Ors. v. State of U.P. and Ors., (1992) 2 UPLBEC 1497, has our approval. In that ease it was held, inter alia, that a perusal of Section 7-A of the U.P. Intermediate Education Act, 1921 and Section 9 of the U.P. Act 24 of 1971 would clearly go to show "that the fact that the Institution is approved and recognized by the Board for the first time or any new subject or group or for a higher class or addition of selection to a existing class shall have no effect unless it is approved by the State Government," that is, Director of Education. It was further observed in that decision that Section 3 of the Payment of Salaries Act; provides that the Committee of Management is also equally responsible for payment of salary to the teachers/employees in their Institutions. It is relevant to point out in this connection that Section 7-AA of the Intermediate Education Act, enables the management to engage teachers for imparting instructions in any subject or group of subjects for a higher class for which recognition is given or any section of an existing class for which permission is granted under Section 7-A notwithstanding anything contained in that Act and also in the Payment of Salaries Act (See Section 7-AB). We must to be understood to say that a teacher or other employee appointed by the management for teaching a new class or section or a new subject for which recognition has been granted is not entitled to receive salary. What we have held is that before saddling the State Government with financial liability in respect of such posts the approval of the Director has to be obtained. In the absence of such approval, the State Government cannot be said to be under any obligation to pay salary to such staff. The view taken by us gains support from the decision of the Supreme Court in the case of Director of Education and Ors. v. Gajadhar Prasad Verma, AIR 1995 SC 1121, in which the Apex. Court, interpreting the provisions of the Payment of Salaries Act, ruled that prior approval of competent officer, for creation of post is a condition precedent for getting reimbursement of the salary of teacher/employee of High School.... "
"22. In view of the above discussion the answer to the question formulated by us is that on recognition being granted by the Board in respect of a subject in an Institution under Section 7-A of the U.P. Intermediate Education Act, 1921 it will not be presumed that the post of lecturer in such subject stands sanctioned by the Director of Education under Section 9 of the Payment of Salaries Act."
15. In J.P. Unni Krishnan's case (supra) the Hon'ble Apex Court has held that right to education is implicit in and flows from the right to life guaranteed by Article 21 of the Constitution of India and right to receive the education is fundamental right flowing from right to life. While dealing with the contents and parameter of the right under Articles 21, 41, 45 and 46 of the Constitution of India in para 180 of the judgment at page 2253 (AIR 1993), it has been held that the citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is however, not an absolute right. Its content and parameters have to be determined in the light of Article 45 and 41. In other words every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State. The obligation created by Article 41, 45 and 46 of the Constitution can be discharged by the State either by establishing institution of its own or by aiding recognising and or granting affiliation to private educational institutions. Where aid is not granted to the private educational institutions and merely recognition or affiliation is granted it may not be insisted that the private education institution shall" charge only that fee as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee, not exceeding the ceiling fixed in that behalf. In this case the question of admission of the students and the charging of fee in government schools, government aided private schools and government recognized private schools were under consideration. The Hon'ble Apex Court did not hold that all the teachers appointed in privately managed institution or even in directly entitled to receive salary from Government fund if they are teaching the students up to the age of 14 years. It is also necessary to point out that it is well settled that a decision is an authority only on the question decided in it. Thus the decision of apex court rendered in J.P. Unni Krishnan case should be understood in the context of the issue involved in the case in which it had been rendered. The issue involved in the case in hand altogether different, therefore, the aforesaid decision can be of no assistance to the case of the petitioner.
16. Thus in view of the aforesaid discussion and law laid down by Hon'ble Apex Court and this court from time to time as indicated in foregoing paragraphs, it is clear that being a part time teacher the petitioner is not entitled for payment of salary from the state exchequer as the post on which he is working has not been sanctioned / approved by Director of Education (Secondary) as required under law.
17. The next question arises for consideration is as to whether the petitioner is entitled for payment of salary at par with the salary payable to regular lecturer of recognised institution receiving grant-in-aid from State Exchequer on a principle of equal pay for equal work. In this regard the submission of petitioner is that although he was appointed as part time teacher for interim measure but he is working in the institution since very inception of his appointment till the date and teaching intermediate and High School classes regularly in Biology subject and discharging all other duties and responsibilities attached to the post of regular teacher/lecturer working in the institution. He has also been required by Board to work as invigilator and valuar of answer books of the examinees in the examinations conducted by the Board. In support of his submission he has placed reliance upon the documents filed in the writ petition referred earlier. It is not in dispute that the recognition has already been granted by the Board to the institution in question for teaching Biology subject in the Intermediate classes and in pursuance thereof the petitioner's appointment was made for teaching Biology subject in Intermediate classes, therefore, he cannot be discriminated in the matter of his employment including the payment of salary admissible to the post of lecturer in the institution in question. In support of his submission learned counsel of petitioner has placed reliance upon the decisions of the Hon'ble Apex Court rendered in case of K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr. A.I.R. 1998 SC 295
and Chandigarh Administration and Ors. v. Mrs. Rajni Vals and Ors. J.T. 2000(1) S.C. 159 and State of West Bengal and Ors. v. Pantha Chatterjee and Ors., J.T. 2003 (5) S.C. 448.
18. Before I proceed to deal with the submissions and cases relied upon by learned counsel of petitioner it is necessary to point out that the doctrine has its roots in the directive principles of state policy under Article 39(d) of the Constitution of India. Because of reason that this Article is under Part IV of the Constitution of India and in view of Article 37 contained in the aforesaid part, the earlier approach of the court was that the doctrine is not enforceable in any Court but it is first time in case of Randhir Singh v. Union of India and Ors. A.I.R. 1982 S.C. 879
in para 8 Hon'ble Apex Court has held that it is true that the principles of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right, but it certainly is a Constitutional goal. While considering the provisions of Articles 14 and 16 inasmuch as the Preamble of the Constitution and Article 39(d) of the Constitution, Hon'ble Apex Court has held that the principles 'equal pay for equal work' is deducible from those Articles and may be properly applied to eases of unequal scales of nay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. In paragraphs 6 and 7 of the judgment the Hon'ble Apex Court has held that the equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for the Courts:
"6. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not far Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not he treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same."
"7. It is well known that there can be and there are different grades in a service, with varying qualifications far entry into a particular grade, the higher grade often being a promotional avenue far officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Article 14 if sought to be applied to them."
19. It appears that after the pronouncement of the aforesaid judgment in Randhir Singh's ease (Supra) a new chapter has been opened in the service law jurisprudence and later on in the subsequent decisions Hon'ble Apex Court has explained the doctrine and expanded its horizon and dimension. In case of State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. AIR 1993 S.C. 286,
Hon'ble Apex Court has held in para 1 of the decision that equal pay for equal work, it is self-evident, is implicit in the doctrine of equality enshrined in Article 14, it flows from it. Because Clause (d) of Article 39 spoke of 'equal pay for equal work for both men and women' it did not cease to be a part of Article 14. In para 3 of the decision the Apex Court has noticed the cases in which the aforesaid principle has been followed and applied by the Apex Court. In para 11 of the aforesaid decision after testing at touch stone of the law laid down by the Hon'ble Apex Court and in para 12 after referring the case of Federation of All India Customs and Excise Stenographers (AIR 1988 SC 1291) the Hon'ble Apex Court has held that the quality of work may vary from post to post. It may vary from institution to institution. It is not a matter of assumption but one of proof. The respondents have failed to establish that their duties responsibilities and junctions are similar to those of the non-technical lecturers in the college. For ready reference paragraphs 1 and 3 are reproduced as under:
Equal pay for equal work, it is self-evident, is implicit in the doctrine of equality enshrined in Article 14, it flows from it. Because Clause (d) of Article 39 spoke of "equal pay far equal work for both men and women" it did not cease to be a part of Article 14. To say that the said rule having been stated as a directive principle of State policy is not enforceable in a Court of Law is to indulge a sophistry. Parts IV and III of the Constitution are not supposed to be exclusionary of each other. The rule is as much a part of Article 14 as it is of Clause (1) of Article 16. Equality of opportunity guaranteed by Article 16(1) necessarily means and involves equal pay for equal work. It means equally that it is neither a mechanical rule nor does it mean geometrical equality. The concept of reasonable classification and all other rules evolved with respect to Articles 14 and 16(1) come into play wherever complaint of infraction of this rule falls for consideration. This is the principle affirmed in Randhir Singh v. Union of India, (1982) I SCC 618 : (AIR 1982 SC 879) as well as in the subsequent decisions of this Court. It would be instructive to notice a few of them."
"3. The above principle was followed and applied in P.K. Ramachandra Iyer, (1984) 2 SCC 141 : (AIR 1984 SC 541);P. Savita and Ors. v. Union of India and Ors., 1985 Suppl. SCC 94 : (AIR 1985 SC 1124); Dhirendra Chamoli, (1986) 1 SCC 637; Surinder Singh, (1986) 1 SCC 639: (AIR 1986 SC 584); Jaipal, (1988) 3 SCC 354: (AIR 1988 SC 1504) and in Federation of All India Customs and Excise Stenographers v. Union of India, (1988) 3 SCC 91 : (AIR 1988 SC 1291). While it is not necessary to refer to all the decisions, a brief reference to the decision last mentioned may be in order. S. Mukherji, J. speaking for himself and R.S. Pathak, C.J., had this to say about the content of the rule (at page 1300 of AIR 1988 SC 1291):
"In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less - it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scales has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived malafide either in law or in fact. In the light of the averments made in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved."
20. In case of State of U.P. and Ors. v. Ministerial Karamchari Sangh reported in AIR 1998 SC 303, the Apex Court has held that even if persons holding same posts performing similar work -if their recruitment, qualification and promotion is different, it would be sufficient for fixing different scales. In para 16 and 17of the judgment the Apex Court has quoted the observation of the decisions rendered in Federation of All India Customs and Central Excise Stenographers, AIR 1988 SC 1291 and State of Haryana v. Jasmer Singh reported in AIR (1997) SC 1788. Thereafter in para 18 of the aforesaid decision it has been held that the mode of recruitment, qualification, promotion arc totally different in both the categories of posts. For ready reference para 16 and 17 of the aforesaid judgment is quoted as under :-
"16. It is also settled proposition that the evaluation of such jobs for the purpose of pay scales must be left to expert body and unless there are any malafides, its evaluation should be accepted. In the case of Federation of All India Customs and Central Excise Stenographers (Recognized) v. Union of India, (1988) 3 SCC 91 : (AIR 1988 SC 1291), this Court observed as follows (para 7 of AIR):
"Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same hut the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will he a negation of that right."
"17. The same view was reiterated in a recent judgment State of Haryana v. Jasmer Singh (1996) 11 SCC 77. This Court in that case held as follows :-
"The principle of "equal pay for equal work" is not always easy to apply. There are inherent difficulties in comparing and evaluating work done by different persons in different organizations, or even in the same organization. The principle was originally enunciated as a part of the Directive Principles of State Policy in Article 39(d) of the Constitution. In the case of Randhir Singh v. Union of India (AIR 1982 SC 879), however, this Court said that this was a constitutional goal capable of being achieved through constitutional remedies and held that the principle had to be read into Articles 14 and 16 of the Constitution. In that case a Driver-constable in the Delhi Police Force under the Delhi Administration claimed equal salary as other Drivers and this prayer was granted. The same principle was subsequently followed for the purpose of granting relief in Dhirendra Chamoli v. State of U.P. (1986 (1) SCC 637) and Jaipal v. State of Haryana (AIR 1988 SC 1504). In the case of Federation of All India Customs and Central Excise Stenographers (Recognized) v. Union of India (AIR 1988 SC 1291), however, this Court explained the principle of "equal pay for equal work" by holding that differentiation in pay scales among Government servants holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. In that case different pay scales fixed for Stenographers (Grade I) working in the Central Secretariat and those attached to the heads of subordinate offices on the basis of a recommendation of the Pay Commission was held, as not violating Article 14 and as not being contrary to the principle of "equal pay for equal work ". This Court also said that the judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bonafide, reasonably and rationally, was not open to interference by the Court."
21. In case of State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association, J.T. 2002(5) SC 189 while dealing with doctrine of "equal pay for equal work" in para 8 and 9 of the decision, Hon'ble Apex Court has held as under :-
"8. From the discussions in the impugned judgment it is clear to us that the High Court has ignored certain settled principles of law for determination of the claim on parity of pay scale by a section of government employees. While making copious reference to the principle of equal pay for equal work and equality in the matter of pay, the High Court overlooked the position that the parity sought by the petitioner in the case was with employees having only the same designation under the central government. Such comparison by a section of employees of state government with employees of central government based merely on designation of the posts was misconceived. The High Court also fell into error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was unrebutted. The appellants in their counter affidavit have taken the specific stand that no comparison between the two sections of employees is possible since the qualifications prescribed for the P.A.s. in the central secretariat are different from the P.A.s. in the state civil secretariat. Even assuming that there was no specific rebuttal of the averment in the writ petition that could not form the basis for grant of parity of scale of pay as claimed by the respondent. The High Court has not made any comparison of the nature of duties and responsibilities, the qualifications for recruitment to the posts of P.A.s in the state civil secretariat with those of P.A.s of the central secretariat."
"9. This court in the case of Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors., dealing with the question of equation of posts and equation of salaries of government employees, made the following observations:
.....................Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees.................. Ordinarily a pay structure is evolved keeping in mind several factors, e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc.................There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and court's interference is absolutely necessary to undo the injustice."
22. In case of State of Haryana and Anr. v. Tilak Raj and Ors., J.T. 2003(5) S.C. 544, Hon'ble Apex Court has occasion to consider the doctrine of equal pay for equal work again in context of daily wages helpers of Haryana Roadways. While taking note of earlier decision rendered in case of Federation of All India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors. reported in AIR 1988 S.C. 1291, State of U.P. v. J.P. Chaurasia reported in AIR 1989 S.C. 19, Harbans Lal v. State of Himachal Pradesh reported in J.T. 1989 (3) S.C. 296, Ghaziabad Development Authority v. Vikram Chaudhary reported in A.I.R. 1995 S.C. 2325, State of Haryana and Ors. v. Jasmer Singh and Ors. reported in A.I.R. 1997 S.C. 1788, the Apex Court has set aside the judgment and order of High Court under challenge and in para 11 of the decision held that appellant State has to ensure that minimum wage prescribed for such worker may be paid to the respondents. The observation made in para 10 of the judgement is apt to be reproduced as under :
"10. A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one.
"Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."
23. From a close and intensive analysis of the decisions of the Hon'ble Apex Court it is clear that there appears three line of cases have been under consideration before the Hon'ble Apex Court on this point. One line of the cases was that where the employees were engaged on daily wage or casual work charge or on ad-hoc basis to cater the needs of increased work in a particular establishment or in a project for short duration without sanction of any permanent post for them in the regular establishment, their wages were paid and charged against particular work or projects. The employees have invoked the doctrine of equal pay for equal work while claiming pay parity with regular employees of the establishment working on the corresponding posts. In such cases the relief of regularisation have also been sought for wherein in some cases Hon'ble Apex Court has directed to frame the scheme of regularisation within a time frame and in some cases on direction of the Hon'ble Apex Court scheme of regularisation and payment of remuneration framed by the authorities concerned have been under consideration before the Hon'ble Apex Court. In case of Surendra Singh and Anr. v. the Engineer in Chief, C.P.W.D. and Ors. reported in AIR 1986 S.C. 584, Dhirendra Chamoli v. State of U.P. reported in AIR 1986 (1) S.C.C. 637, Post and Telegraph Department through Bhartiya Dock Mazdoor Manch v. Union of India reported in AIR 1987 S.C. 2342, U.P. Income Tax Department Contingent Paid Staff Welfare, Association v. Union of India reported in AIR 1988 S.C. 517, Khagwati Prasad v. Delhi State Mineral Corporation reported in AIR 1990 S.C. 371, Dharward District C.P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and Ors. reported in AIR 1990 S.C. 883, Chief Conservator of Forest v. Jagannath Maruti Kundhare reported in AIR 1996 S.C. 2898 and State of Punjab v. Devendra Singh reported in 1998 (9) S.C.C. 595 . In one set of cases referred above the Apex Court has directed to regularise the employees in one block and pay them the same minimum pay scale as admissible to the regular employees. In other set of cases directions were made to absorb them in a phased manner under scheme, which depends upon facts of each case under scheme. In Mool Raj Upadhyay v. State of H.P., 1994 Supplement-2 S.C.C. 316 , the Apex Court has approved the scheme under which daily wage workers who have not completed ten years of service were to be paid daily wage at the rate prescribed by the Government of H.P. from time to time for daily wage employees falling under class III or class IV till they are appointed regularly. Similar view has also been taken by the Apex Court in Gujrat Agricultural University v. Rathed Labhu Baker and Ors. reported in AIR 2001 S.C. 706, wherein the proposed scheme of the University for payment of remuneration which contains payment of minimum wage as prescribed by the Government from time to time to such daily wage employees was approved by Hon'ble Apex Court. Similar view has also been taken by the Hon'ble Apex Court in State of U.P. and Ors. v. Putti Lal,(2002) 2 UPLBEC 1595, wherein direction for framing of scheme of regularisation of daily wage employees of forest department was given by the Apex Court. In pursuance of which scheme of regularisation has been framed by the State Government in exercise of rule making power under the proviso of Article 309 of the Constitution of India. In connection of payment of wages to such daily wage employees the Apex Court has observed that daily wager would be entitled to draw at minimum of pay scale being received by their counter-part in the Government and would not be entitled to other allowances or increment so long as they continue on daily wage. The question of their regularisation was directed to be dealt with in accordance with statutory rules framed by the Government. In State of Haryana v. Piyara Singh reported in AIR 1992 S.C. 2130, the Apex Court has held that work charge daily wage and casual employees who are not workman in Industrial Dispute Act blanket direction to regularise all of them on completion of one year service are not sustainable and similarly direction to regularise persons of above categories who are workmen on completion of four or five years is also not sustainable and similar direction to apply rule of 'equal pay for equal work' without discussion has also been held not sustainable. Last case referred earlier is case of State of Haryana and Ors. v. Tilak Raj and Ors. reported in J.T. 2003 (5) S.C. 544, Hon'ble Apex Court while setting aside the judgment of High Court under challenge has held that the appellant State has to ensure the minimum wages which are prescribed for such worker and the same is paid to them.
24. The second line of cases were those cases in which the fixation of pay of regular employees on account of various revisions of pay scale and amalgamation and bifurcation of posts were almost under consideration. However in certain cases different group of employees having similar designations and posts and similar nature of work performed by them have also invoked the doctrine of 'equal pay for equal work'. Although in forgoing paragraphs the sufficient discussion in respect of such cases have already been made. The last such case referred earlier is Haryana Civil Secretariat Personal Staff Association's case (supra) wherein the Hon'ble Apex Court has held that there can be no doubt that the equation of posts and equation of salaries is complex matter which is best left to an expert body unless there is a cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and court's interference is absolutely necessary to undo the injustice. The third line of cases were that in which part time employees have claimed regularisation and pay parity with the regular employees on allegation that they are also discharging similar and identical duties to that of regular employees. The third line of cases are more akin and nearer to the first line of cases referred earlier, therefore, the principles of enunciated in both the lines of the cases referred above have some material bearing for deciding third lines of cases also.
25. The case in hand comes under the category of third line of cases. Thus for testing at the touchstone of principles enunciated by the Apex Court in aforesaid cases, it is necessary to examine the qualification for the post, procedure, mode and manner of recruitment, duties and responsibilities discharged by the regular employees and part time teacher including the quality, nature, volume of the work. In this connection at very outset it is necessary to mention here that before commencement of U.P. Secondary Education Services Selection Board Act, 1982, hereinafter referred to as U.P. Act No. 5 of 1982, for recruitment of teachers in Higher Secondary Institution recognized by the Board, the provisions of U.P. Act No. 2 of 1921 were in operation. Earlier to insertion of Section 7-AA by U.P. Act No. 18 of 1987 there was no provision either under the provisions of U.P. Act No. 5 of 1982 or under the provisions of U.P. Act No. 2 of 1921 for employment of part time teacher in the Higher Secondary Institution recognized by the Board. It is first time the provision has been made by the U.P. Act No. 18 of 1987 for employment of part time teacher with effect from 14.10.1986 to cater the need of teaching in the institution on account of recognition of any new subject or group of subject or higher classes or opening of a new section in existing class. Although the educational qualification prescribed for such teacher is same as provided in Regulation 1 of Chapter II of U.P. Intermediate Education Act but the procedure of recruitment is quite different. In case of part time teacher the selection has to be made by selection committee constituted by the committee of management of the institution though after advertisement of vacancies in two daily newspapers which have wide circulation in State as well as locality in question; whereas before commencement of U.P. Act No. 5 of 1982 the regular teachers were also recruited by the committee of management of the institution but the constitution of selection committee was of different nature as provided under Chapter 11 of the regulations and manner and criteria of selection was also of different nature which was of much high standard than that of the part time teacher. After commencement of U.P. Act No. 5 of 1982 the recruitment of teachers to be employed in the Intermediate Colleges and Higher Secondary Schools or High School recognised by the Board a total altogether different scheme has been framed under the Act. The statement of objects and reasons appended to the bill of the aforesaid Act throws sufficient light, which is also much significant and have material bearing on the question in issue. The statement of objects and reasons, inter alia, Postulates that the appointment of teachers in Secondary institutions recognized by Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and regulations made there under. It was felt that the selection of teachers under the provisions of said Act and regulations was some time not free and fair. Besides the field of selection was also very much restricted. This adversely attected the availability of suitable teachers and standard of education. It was, therefore, considered necessary to constitute Secondary Education Service Commission at State level to select Principals, Lecturers, Head Master and L.T. Grade Teachers. The provisions of Section 3 of U.P. Act No. 5 of 1982 pertains to establishment of Board which means Uttar Pradesh Secondary Education Services Selection Board. Section 4 of the Act contains provisions for composition of Board, which inter alia provides for appointment of Chairman, Vice-chairman and nine members of Board to be appointed by State Government. The qualifications of Chairman of the Board is also of sufficiently high standard unless a person is or has been a Vice-Chancellor of University established by law is or has been in the opinion of the State Government an outstanding officer of administrative service not below the rank of Secretary of the State Government or Director of Education, he cannot be appointed as such. Similarly the qualifications prescribed for appointment of Vice-Chairman and members of Board are also of much standard. Under Section 16 of the Act procedure for selection by direct recruitment has been given and under Section 12 of the Act the procedure for selection by promotion have been laid down. Besides this the Rules have also been framed to give effect the provisions of Act. Initially U.P. Secondary Education Services Commission Rules, 1983 was framed in the rule making power under the U.P. Act No. 5 of 1982. Later on it was replaced by U.P. Secondary Education Services Commission Rules, 1995. Ultimately, 1995 Rule was also replaced by another set of rules, namely, U.P. Secondary Education Services Selection Board Rules, 1998. These rules are very much comprehensive, transparent and have also intended to ensure lair selection of suitable candidates on merits. Under the rules every institution through officers of Education Department is required to intimate the vacancies of teachers to the Board, thereupon the Board has to take steps for holding selection. The selections are made by clubbing the vacancies of all the institutions available throughout the State after due advertisement atleast in two daily newspapers having wide circulation in the State. The functioning of Commission/Board is also regulated by statutory regulations framed for the purposes. After selection and placement of selected candidates, the institutions are directed to issue letter of appointment to the selected candidates. Now the committee of management of the institution has no role to play in the process of selection and recruitment of such teachers except to issue the letter of appointment to such recommended teacher by the Board.
26. Thus an intensive analysis and close scrutiny of the aforesaid provisions of law go to show that there is vast difference in the manner, mode and procedure of selection of part time teacher and regular teachers appointed in substantive vacancies in the Secondary institutions recognized by the Board of High School and Intermediate Education. On this count both the teachers cannot be comparable to each other in standard of recruitment and accordingly the qualities of work and duties discharged by them can also not be comparable. Besides this it is also relevant to mention here that even a regular teacher already working in any institution can be appointed as part time teacher in the same institution or in any other institution as provided under Sub-section 6 of Section 7-AA of U.P. Act No. 2 of 1921. This piece of legislation, which is intrinsic evidence in the matter, also leads to an irresistible conclusion that both the teachers part time and regular cannot be equated at the same footing. It is also because of the reason that part time teacher can be appointed for a limited purpose as an interim measure to teach a particular subject in the institution in the contingencies referred under Section 7-A of U.P. Act No. 2 of 1921; whereas regular teachers are appointed against substantive vacancies. Therefore, the part lime teachers are not comparable to the regular teacher in the manner or mode of recruitment, quality and volume of work and duties and responsibilities assigned to and discharged by them. Although in the pleadings of the writ petition the petitioner has made assertion that he is discharging duties similar to the regular lecturer who has been appointed against substantive vacancy and against sanctioned post and he has also been assigned the duties of Invigilator and as a valuer of answer-books of examinees of High School and Intermediate examination conducted by U.P. Intermediate Education Board but the aforesaid pleadings in my considered view cannot take the place of proof for treating both categories of teachers on identical footing because of the other reason also. It is possible that certain duties and responsibilities of the part time teacher and regular teacher may be similar to each other but that alone can also not be sufficient proof for the same as some time duties of part time teacher might have trappings of regular teacher but the same can also not be treated to be a sufficient foundation for treating both the teachers at identical footings. It might also be possible that there may be a large degree of difference in responsibilities of part time teacher and regular teacher. That apart it is also well settled that a pay scale is attached to definite post and in case of daily wager and similarly part timer who holds no post cannot be held liable to hold any post to claim even any comparison with regular and permanent staff for any/or all purposes including equal pay and allowances. Thus in view of the aforesaid discussion, 1 am of considered opinion that the petitioner cannot be held entitled to be treated to be identical in any manner indicated herein before at par with regular teachers employed in the Secondary institutions recognised by the Board, as such cannot be held entitled at par with regular teachers in respect of payment of salary and other allowances paid to the regular teachers.
27. In the case of K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr. reported in AIR 1998 S.C. 295, the admitted position was that the appellant and six others had been appointed on daily wages to the post of Lab Assistant and non-teaching staff of the respondent-private college. They were being paid daily wages. On dismissal of their writ petition for direction to pay equal pay for equal work on par with the regular employees, they have tiled appeal before Hon'ble Apex Court. The Apex Court has held that it is not in dispute that executive instructions issued by the Government have given them right to claim pay scale so as to be on par with the Government employees. The question was when there is no statutory rule issued in that behalf, at relevant time the institution being not in receipt of any grant-in-aid whether the writ petition under Article 226 of the Constitution of India is not maintainable? In consequence are they also not entitled to parity of pay scales as per executive instructions of the Government? In that context of the matter the Hon'ble Apex Court has held that private institutions cater to the needs of educational opportunities, the teacher duly appointed to the post in private institutions also entitled to seek enforcement of the orders issued by the Government and it was also held that when an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedies provided under Article 226 of the Constitution of India and accordingly while holding that writ petition is maintainable, it was also held that on the basis of executive instructions the appellants are also entitled to same benefits as provided to the other employees. Thus in this view of the matter this ease can be no assistance in any manner to the petitioner's case as there does not exist any executive instruction in favour of petitioner on the basis of which he can claim the parity of pay scale at par with regular teachers working on corresponding posts.
28. In case of The Chandigarh Administration and Ors. v. Mrs. Rajni Vali and Ors. reported in J.T. 2000(1) SC 159 in para 4 of the judgment the Apex Court has observed that "from the discussions in the impugned judgment it appears that the writ petitioners pressed their claim mainly on the principle of equal pay for equal work. They also made a grievance about discriminatory treatment meted out to them by Chandigarh Administration and Management. The appellants on other hands refuted the claim on the ground of conditional grant of permission to open higher secondary classes and paucity of funds to meet the additional burden in case the prayer in writ petition is allowed. Substantially the same position was repeated during the hearing of the case in this Court. Learned counsel for the appellants further submitted that under the rules governing the grant-in-aid, the staff position of aided institution as on 30th November, 1967 has been fro/en. Since all the respondents were appointed subsequent to that date, they are not entitled to salary at par with teachers of other aided schools who were in service by cut of date." In that context of the matter after taking note of earlier decisions mentioned in paragraphs 6, 7, and 8 of the judgments, the Hon'ble Apex Court has held in paragraph 9 of the judgment that "tested on the touch stone of the principles laid down in aforementioned decisions, the position is manifest that there is no justification for denying the claim of respondents for parity of pay scale and to accept the contention of appellants will amount to confirming the discriminatory treatment against the respondents". In this regard, it is necessary to point out that the Hon'ble Apex Court has rendered the aforesaid decision in context of different statutory schemes, which is not similar to the statutory schemes, which is subject matter under consideration. Beside this the question involved in this case is also on different footing and was not under consideration before the Apex Court in the aforesaid judgment. Therefore, the aforesaid case is clearly distinguishable on the facts, accordingly it can be of no assistance to petitioner's case.
29. In case of State of West Bengal and Ors. v. Pantha Chatterjee and Ors. reported in J.T. 2003(Vol.( 5) SC 448 the West Bengal Government raised a battalion of part-time Border Wing Home Guards in the year 1977. The Union of India agreed to reimburse the expenditure thereon to the State Government. The Memorandum of appointment stipulating that the volunteers are recruited for casual work as part-time staff of the Government and they would render voluntary service and be subject to rotational duty annually, but the voluntary concept was not followed in letter and spirit, instead thereof they were made to render services similar to the regular Border Wing Home Guards of West Bengal and for long years they were deployed for patrolling the borders. However their emoluments and service conditions were not at par with regular Border Wing Home Guards. Therefore, they filed writ petition seeking pay parity and application of service conditions as applicable to the regular Home Guards. While deciding the writ petition the learned Single Judge has found that part time Home Guards are rendering services similar to the regular Home Guards and noticed discriminatory treatment meted out to the part timers and directed the State to extend the benefit admissible to the regular Border Wing Home Guards to the part time Border Wing Home Guards also. The Division Bench has also upheld the findings of Single Judge except the direction regarding award of cost to each writ petitioners. Feeling aggrieved against which the State of West Bengal had preferred Special Leave to Appeal before Hon'ble Apex Court. While dismissing the appeal of the State the Hon'ble Apex Court has held that High Court had rightly concluded that so-called part timer could not be treated differently from the regular Border Wing Home Guards, hence they were entitled to parity with them in respect of pay, allowances and other service conditions. The facts of the case in hand are quite distinguishable to the facts and circumstances of the aforesaid case. In the aforesaid case it was found as a fact that part time Border Wing Home Guards of West Bengal were made to rendered services similar to regular Border Wing Home Guards of West Bengal for long times about fifteen years and they were continuously deployed for patrolling the border like regular Border Wing Home Guards, as such in the aforesaid facts and circumstances of the case High Courts and Hon'ble Apex Court has treated the part timers at par with regular Home Guards. Accordingly all the service benefits admissible to the regular Home Guards have been extended to the part timers including similar pay scale attached to them. As indicated earlier the facts of the instant case is not similar to the facts of aforesaid case, as such the same cannot be any assistance to the petitioner's case.
30. Thus in view of the discussions made above, I have no hesitation to hold that the principle of equal pay for equal work cannot apply in the facts and circumstances of the case in hand, as such it cannot be held that the petitioner is entitled to parity in the pay scale at par with regular lecturer appointed in the institutions recognized by the Secondary Education Board. Therefore, the question formulated in this regard is answered accordingly.
31. Now the next question which arises for consideration as to whether in given facts and circumstances of the case, any direction for treating the petitioner as regular lecturer or direction to regularise him on the post of lecturer can be given? In this regard the submission of the learned counsel for petitioner is that from the date of appointment till date, the petitioner is continuously working and discharging the duties of lecturer in the subject of Biology in the institution in question. Therefore, he is entitled to be absorbed and to be treated as regular lecturer or a direction to regularise his services may be given to the authorities. In this connection, it is necessary to point out that the regularisation has been recognised as a different mode of recruitment for that purpose, there must exist post for which regularisation is to be made and there must exist rules under which regularisation is to be made. Thus these two conditions are required to be examined before any direction can be issued to consider for regularisation. It is not in dispute that petitioner's recruitment has been made to cater the need of imparting education in Biology subject in Intermediate classes on account of recognition of the aforesaid subject given by the Secondary Education Board in the contingencies mentioned in Section 7-A of U.P. Act No. 2 of 1921 and no post of lecturer in Biology subject has been created by the competent authority i.e. Director of Secondary Education, Uttar Pradesh. Therefore, his appointment cannot be treated against any vacancy in respect of any sanctioned post. The petitioner himself has moved an application before the Director of Secondary Education Board, Uttar Pradesh, Allahabad for creation and sanction of post of lecturer in Biology subject on 13.11.2001 contained in Annexure-15 of the writ petition and reminder dated 26.11.2001 contained in Annexure-16 of the writ petition and again an application to the same effect addressed to the Secretary, Madhyamik Education, Government of Uttar Pradesh, Lucknow contained in Annexure-17 of the writ petition and reminder addressed to him contained in Annexure-18 of the writ petition. These facts demonstrate that there exists no sanctioned post entitling the petitioner for seeking any direction to be considered for regularisation. At the best, the authorities can be directed to consider the creation and sanction of necessary post provided the application is moved by the Committee of Management of the institution according to the norms for sanction of the post having regard to the strength of the students inasmuch as other conditions required to be fulfilled by the institution. The application/representation of the petitioner straight way to the Director of Secondary Education, Uttar Pradesh, Allahabad and other Officers of the education department can be of no avail unless the same is moved by the Committee of Management of the institution. The petitioner has filed the Government Order dated 20.11.1977, which provides the norms of the teachers and other employees of Secondary Education. In paragraph 3 of the Note appended to the aforesaid Government Order, it has been specifically mentioned that formal creation and sanction of the post by the competent authority is necessary and it cannot be treated to be automatically created/sanctioned on the basis of the norms alone. Therefore, in view of the facts and circumstances of the case, no direction can be issued to the authorities of the education department to consider for creation and sanction of the post of lecturer in Biology subject, as sought by the petitioner through the aforesaid applications/representations. However, it shall be open to the Committee of Management of the institution to take fresh steps by moving an application for creation and sanction of the post of lecturer in Biology subject on a prescribed format according to the Government Order and rules applicable for creation of such post, thereupon the respondent No. 2 is directed to examine the matter in accordance with law and pass appropriate order thereon as soon as possible within two months from the date of moving such application by the institution in question.
32. So far as the rule in respect of the regularisation is concerned, the petitioner did not point out any statutory rule on the basis of which his claim for regularisation on the post of lecturer in Biology subject can be considered. It is well settled that unless there exists any rule for regularisation, no direction can be issued by this Court to consider the claim for regularisation of an employee. At this juncture, an incidental! question arises for consideration as to whether the Court can issue any direction to the authority to frame rule, as indirectly sought by the petitioner ? In this connection, it is necessary to point out that in the process of judicial review under Article 226 of the Constitution of India this Court has a very limited scope as laid down by the Hon'ble Apex Court from time to time. In Asif Hameed and Ors. v. State of Jammu and Kashmir and Ors., reported in AIR 1989 Supreme Court 1899, Hon'ble Apex Court while examining the scope of judicial review under Articles 32 and 226 of the Constitution of India vis-a-vis doctrine of separation of powers, has very categorically held in paragraphs 17 and 19 of the decision as under:-
'17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution make have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
19. When the State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self imposed limits. The court sists in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive , provided these authorities do not transgress their constitutional limits or statutory powers."
33. Similarly, in Mullikarjuna Rao and Ors. v. State of A.P. and Ors., reported in AIR 1990 Supreme Court 1251, in para 12 after relying upon earlier judgments, the Hon'ble Apex Court has held that the High Court or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.
34. Similar view has also been taken by the Hon'ble Apex Court in Chandigarh Administration and Anr. v. Manpreet Singh and Ors., AIR 1992 SC 435. In para, 20 of the aforesaid judgment also Hon'ble Apex Court has held that the Courts cannot assume role of rule making authority and cannot also act as appellate authority over rule making power of the executive and the Courts cannot usurp the functions assigned to the executive authority over the rule making power. In case of State of Haryana and Ors. v. Piara Singh and Ors., reported in AIR 1992 Supreme Court 2130, Hon'ble Apex Court has taken a note of earlier cases of Dharwad District PWD Literate Daily wage Employees Association v. State of Kerala, AIR 1990 SC 883 and Jacob v. Kerala Water Authority and Ors., AIR 1990 SC 2228. In the first case a direction has been issued to regularise the casual and daily rated employees, who have completed ten years service by 31st December, 1989. Guidelines were also issued for regularisation and in the second case while issuing guidelines for regularisation to the employees of certain length of service, other guidelines have also been issued for consideration of their claim for regularisation as well as for relaxation of their age in regular recruitment, but in para 19 of the judgment the Hon'ble Apex Court has held that blanket directions by the High Court for regularisation of all the work-charged, daily wage workers and casual labourers, who are not workmen under the Industrial Disputes Act, on completion of one year, are unsustainable and similar directions to regularise the persons of the above categories, who are workmen, on completion of 4 or 5 years of service, are also unsustainable. But in para 25 of the decision it is further observed that efforts should be made to regularise such daily wage, casual and work-charge employees as far as possible and as early as possible subject to fulfillment of qualifications prescribed for the post and availability of the work.
35. In J. & K. Public Service Commission etc. v. Dr. Narinder Mohan and Ors., reported in AIR 1994 SC 1808, in para 11 of the judgment Hon'ble Apex Court has held that the directions issued by the Hon'ble Apex Court from time to time for regularisation of ad hoc appointments, are not ratio of the decision, rather the aforesaid directions were to be treated under Article 142 of the Constitution of India and ultimately held that the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the Public Service. Commission to consider the cases of the respondents of the aforesaid case. For ready reference the observations made by the Hon'ble Apex Court in paragraph 11 of the decision is reproduced as under:-
"11. This Court in Dr. A.K. Jain V. Union of India, 1988 (1) SCR 335, gave directions under Article 142 to regularise the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.C.C. Rawani v. Union of India (1992) 1 SCC 331, is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularise the ad hoc appointments had become final. When contempt petition was filed for
non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf , while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Gian Prakash Singh, 1993(5) JT (SC) 681 this Court by a Bench of three Judges considered the effect of the order in A.K. Jain's case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka, AIR 1991 SC 295: (1991 Lab 1C 235), this Court while holding that the appointment to the post of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana v. Piara Singh, (1992 AIR SC 2130), this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules."
36. At this juncture it is also necessary to point out that in view of the provisions of Section 16 of U.P. Act No. 5 of 1982 any other appointment, which is not covered by the provisions of the aforesaid section, would be void abinitio. Therefore, even on creation of necessary post of Biology lecturer and on occurance of vacancy in respect thereof, it would not be legally permissible to issue any direction for absorption of the petitioner or to treat him as regular lecturer or to consider his case for regularisation. The provisions contained in Section 33-A, 33-B, 33-C and 33-D of U.P. Act No. 5 of 1982 are also indicative of the fact that for regularisation of teachers of Higher Secondary Institutions, who have been appointed against the sanctioned post on ad hoc basis, the State legislature had intervened from time to time and regularised the services of such ad hoc teachers. As indicated herein before since this Court cannot mandate the legislature to enact law regarding regularization of part time teachers working in the institutions recognized by the Board. Therefore, in absence of legislative enactment, the petitioner's case can neither be considered for regularisation nor absorption on the post of lecturer nor he can be treated to be regular lecturer in the institution in question. Thus, in view of the aforesaid discussions, the above question formulated by me is answered accordingly.
37. Now the next question arises for consideration is as to whether the provisions of paragraph 6 of the Government order dated 10^th August, 2001 is ultra virus to the provisions of Section 7-AA (5) of U.P. Act No. 2 of 1921? In this regard the submission of learned counsel for the petitioner is that under the provisions of Sub-section 5 of Section 7-AA of the U.P. Act No. 2 of 1921, the State Government is empowered to fix honorarium payable to the part time teacher by general or special order issued in this behalf, the State legislature has conferred the aforesaid power upon the State Government but State Government instead of exercising the aforesaid power by itself has virtually abdicated/delegated its power to the committee of management of the institution to fix honorarium payable to the part time teachers. While doing so only guideline provided under the aforesaid Government order is that the payment of such honorarium may not be less than fixed for payment of "skilled workman". Learned counsel for the petitioner while relying upon decisions of the Hon'ble Apex Court rendered in Haryana Unrecognised Schools' Association v. State of Haryana (1996) 4 SCC 225 and a case which was between Ahmedabad Private Primary Teachers' Association and Administrative Officer and others reported in 2004 (100) FLR 601, has further submitted that State Government is incompetent to treat the "teachers of educational institution" at par with workmen of Industrial establishment and direct the committees of Management to fix their wages not less than wage fixed for "skilled workman" under the provisions of Minimum Wages Act.
38. In case of Haryana Unrecognised Schools' Association (Supra) the question for consideration before the Hon'ble Apex Court was that whether teachers of an educational institution can be held to be "employees" under Section 2(i) of the Minimum Wages Act, 1948 to enable the Government to fix their minimum wages. It appears that the Government of Haryana in exercise of power conferred under Section 27 of the aforesaid Act added in Part I of the Schedule Item 40 describing employment in private coaching classes, schools including nursery schools and technical institutions, for the purpose of fixing minimum rate of wages for the employees therein. By notification dated 30.4.1983 the State Government in exercise of power conferred under Sub-section (2) of Section 5 of the aforesaid Act fixed the minimum rate of wages in respect of the different categories of employees serving in such schools. Challenging these notifications the writ petitions were filed essentially on the ground that teachers of educational institutions cannot come within the purview of the Act since they are not "workman" within the meaning of Industrial Dispute Act, 1947 nor would they be employees under Section 2(i) of the Act. The High Court however dismissed the writ petition on the ground that power of the State Government to add any employment to the schedule under Section 27 of the Act is without any fetter and further the appropriate Government has tried to mitigate the sufferings and exploitation of educated trained/untrained teachers at the hands of management/employer of private educational institution and Section 5 of the Act gives large power to the State Government but in Special Leave to Appeal Hon'ble Apex Court has held that a combined reading of Sections 3, 2(1) and Section 27 of the Minimum Wages Act, 1948 and statement of object and reasons of the legislation makes it explicitly clear that State Government can add to either part of the schedule any employment where the persons are employed for hire or reward to do any work skilled or unskilled, manual or clerical. If the persons employed do not do the work of any skilled or unskilled or of manual or clerical nature then it would not be possible for the State Government to include such an employment in the schedule in exercise of power under Section 27 of the Act. Since the teachers of educational institution are not employed to do any skilled or unskilled or manual or clerical work and therefore, could not be held to be a employee under Section 2(i) of the aforesaid Act. It is beyond the competence of the State Government to bring them under the purview of the aforesaid Act by adding the employment in educational institution in the schedule in exercise of power under Section 27 of the Act. The State Government in exercise of power under Section 5(2) the Act is not entitled to fix minimum wage of such teachers. Accordingly the notifications so far as teachers of educational institution are concerned had been quashed. For ready reference paragraphs 10 and 11 of the decision of Hon'ble Apex Court are extracted as under :
"10. A combined reading of the aforesaid provisions as well as the object of the legislation as indicated earlier makes it explicitly clear that the State Government can add to either part of the Schedule any employment where persons are employed for hire or reward to do any work skilled or unskilled, manual or clerical. If the persons employed do not do the work of any skilled or unskilled or of a manual or clerical nature then it would not be possible for the State Government to include such an employment in the Schedule in exercise of power under Section 27 of the Act. Since the teachers of an educational institution are not employed to do any skilled or unskilled or manual or clerical work and therefore could not be held to be an employee under Section 2(i) of the Act, it is beyond the competence of the State Government to bring them under the purview of the Act by adding the employment in educational institution in the Schedule in exercise of power under Section 27 of the Act. This Court while examining the question whether the teachers employed in a school are workmen under the Industrial Disputes Act had observed in A. Sundarambal v. Government of Goa, Daman & Diu 1988 (4) SCC 42 (SCC p. 48, para 10):
"We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or postgraduate education cannot be called as 'workmen' within the meaning of Section 2(s) of the Act. Imparting of education, which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children; he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching."
"11. Applying the aforesaid dictum to the definition of employee under Section 2(i) of the Act it may be held that a teacher would not come within the said definition. In the aforesaid premises we are of the considered opinion that the teachers of an educational institution cannot be brought within the purview of the Act and the State Government in exercise of powers under the Act is not entitled to fix the minimum wage of such teachers. The impugned notifications so far as the teachers of the educational institution are concerned are accordingly quashed. This appeal is allowed. Writ petition filed succeeds to the extent mentioned above. There will be no order as to costs."
39. In case of Ahmedabad Private Primary Teachers' Association (Supra) the question for consideration before the Hon'ble Apex Court was whether the teachers who are mainly employed for imparting education fall within the definition of the expression "employee" under Section 2(e) of Payment of Gratuity Act, 1972 and on that account whether they are entitled to claim the payment of gratuity under the provisions of the aforesaid Act. The Apex Court while taking note of para 7 of the earlier decision rendered in A. Sundarambal (Supra) wherein it was held that even though an educational institution has to be treated as an Industry, teachers in an educational institution cannot be considered as workman and after examining the various definitions of the word "employee" in different labour law enactments considered alongwith definition of word "employee" used in 2(e) of Payment of Gratuity Act has held that teachers who are mainly employed for imparting education do not answer the description of "employees" who are skilled, semi-skilled or unskilled and accordingly not covered for availing gratuity benefits under the aforesaid Act.
40. Thus in view of the aforesaid discussion and the law laid down by the Apex Court in the aforesaid cases and I am of considered view that the submissions of learned counsel of petitioner have substance and deserves to be accepted. Since the teachers cannot be treated as "skilled", "semi-skilled" and "unskilled" employees of various enactments under labour laws, therefore, while issuing the Government order dated 10th August, 2001 it was not within the competence of State Government to prescribe any honorarium to be paid to the part time teachers of educational institution prescribing a wage not less than minimum wage fixed under the provisions of Minimum Wages Act and this power too cannot be further delegated to any other body like committee of management of the institutions in absence of such power of delegation under statute. Therefore, the provisions of paragraph 6 of the aforesaid Government order is beyond the competence of State Government and held to be null and void as ultra virus to the aforesaid provisions of Act on both the counts on the ground of incompetence inasmuch as on the ground of abdication of powers to other bodies. Accordingly, the aforesaid provisions are liable to be struck down by this Court, as such hereby quashed. Thus the question formulated in this regard is answered accordingly.
41. Now the next question arises for consideration is whether the terms and conditions of employment of the petitioner in respect of payment of honorarium to him at a rate of Rs. 10/- per period is held to be based on unconscionable bargaining of employer with the petitioner and contrary to the provisions of Section 23 of Contract Act inasmuch as provisions of Article 14 and Article 23 of the Constitution of India ? In this connection the assertion of petitioner in writ petition is that although he is discharging duties similar to the lecturers in the institution but being paid at a rate of Rs. 10/- per hour which will come to tune of Rs. 500/- in a month, whereas teachers appointed on regular basis on the post of lecturers in recognised institution are being paid salary at a rate of Rs. 12,000/- per month. Learned counsel for the petitioner has submitted that on account of want or poverty and absence of alternative employment/job the petitioner is compelled to render the service as part time teacher since long back and still continuing on the aforesaid post at a rate of wage/remuneration Rs. 10/- per hour as such the action of respondents is violative of Articles 14 and 23 of the Constitution of India inasmuch as the aforesaid terms and conditions in the letter of appointment of the petitioner are contrary to the public policy and violative of Section 23 of Contract Act and is also contrary to the law laid down by the Apex Court in case of People's Union for Democratic Rights and Ors. v. Union of India and Ors. reported in AIR 1982 S.C. 1473 and Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. reported in AIR 1986 S.C. 1571.
42. In the case of People's Union for Democratic Rights (Supra) the Hon'ble Apex Court in para 12 of the decision while interpreting the provisions of Article 23 has held that although other fundamental rights are enforceable against the State but there are certain fundamental rights conferred by the Constitution which are enforceable against whole of the world and they are to be found inter alia under Article 17, 23 and 24 of the Constitution of India. While dealing with the contents and scope of Article 23 of the Constitution of India in para 14 and 15 of the decision the Hon'ble Apex Court has discussed the matter in detail and in para 15 of the judgment held that where a person provides labour or service to another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of word "forced labour" under Article
23. For ready reference it would be necessary to quote the relevant extract of observations of Apex Court made in para 14 and 15 of the judgment as under:
"14.........The question is what is the scope and ambit of the expression 'begar and other similar forms of forced labour'?..... .It is very difficult to formulate a precise definition of the word 'begar', but there can be no doubt that it is a form of forced labour under which a person is complelled to work without receiving any remuneration. Molesworth describes 'begar' as "labour or service exacted by a government or person in power without giving remuneration for it," Wilson's glossary of Judicial and Revenue Terms gives the following meaning of the word 'begar' : "a forced labourer, one pressed to carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was given......Now it is not merely 'begar' which is unconstitutionally prohibited by Article 23 but also all other similar forms of forced labour. This article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights............ Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may. appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a ease to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and, injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by Article 23 therefore says that no one shall be forced to provide labour or service against his will, even though it be under a contract of service."
"15. Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work through he is paid less than what he is entitled under law to receive. What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced to provide and 'force' which would make such labour or service 'forced labour' may arise in several ways..............We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23. Such a person would be entitled to come to the Court for enforcement of his fundamental right under Article 23 by asking the Court to direct payment of the minimum wage, to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied."
43. In Central Inland Water Transport Corporation Ltd. case (Supra), Hon'ble Apex Court while giving some illustrations of unreasonable and unfair clauses in contracts, based on unconscionable bargaining in para 90 of the decision and explaining the scope of expression "public policy", in para 93 held in para 94 that the type of contracts to which the principle formulated by us above applies, are not contracts which are tainted with illegality, but are contracts which contain terms, which are so unfair and unreasonable that they shock the conscience of the court. It is apt to reproduce the relevant extract of para 90 as under:-
"90. This principle is that the courts will not enforce and will when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable cause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance , the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard from or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a cause in that contract or form or rules may be. This principle , however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."
44. Thus in view of the aforesaid discussions, I am of the considered view that the honorarium/ remuneration fixed by the Committee of Management of the institution at the rate of Rs. 10/- per period/ hour for teaching the students of Intermediate classes in Biology subject is very meagre amount. The payment of honorarium/remuneration in a month only in tune of Rs. 500/- to the petitioner in comparison to the regular lecturers of the institution, who are getting salary at the rate of Rs. 12000/- per month is highly unfair, unreasonable and based on unconscionable bargaining and shocking the conscience of the court. This Court cannot loses sight of the facts that even unskilled labourers working on daily wage basis are paid more than the amount paid to the petitioner. It is necessary to mention here that according to the Government Order dated 20.11.1977(Annexuru-21 of the writ petition) the teaching norms prescribed for teachers of Intermediate classes i.e. for lecturers of institutions recognised by the Board are 30 periods/hours in a week, which would come to 5 periods/ hours every day. Thus the remuneration, which is being paid to the petitioner at a rate of Rs. 10/-per hour, in five hours teaching day, would come to only Rs. 50/- per day. Such meagre payment of remuneration to the petitioner, in my considered opinion is violative of Article 23 of the Constitution and contrary to the public policy inasmuch as violative of the provisions of Section 23 of the Contract Act. Thus, the aforesaid conditions in the letter of appointment of petitioner being contrary to the aforesaid provisions of law are held to be null and void and not sustainable at all. Accordingly, the same is hereby quashed. Thus the question formulated herein before is answered accordingly.
45. Now further and last question arises for consideration that what would be the reasonable and appropriate remuneration? Although the power to fix honorarium payable to the part time teacher under Section 7-AA (5) of U.P. Act No. 2 of 1921 has been conferred upon the State Government by the State legislature and normally this Court can neither assume the role of the State Government in the process of judicial review under writ jurisdiction nor can sit in appeal over the judgments of executive Government, but at the same time since I have already taken the view that the provisions of Minimum Wages Act cannot be held applicable in the case of part time teachers, therefore, it is not legally permissible for the Government to fix the remuneration/ honorarium to the part time teachers according to the provisions of Minimum Wages Act as fixed for skilled, semi skilled and unskilled employees of industrial establishments. Since the principle of equal pay for equal work has also no application in given facts and circumstances of the case and part time teachers cannot claim salary at par with regular teachers, therefore, no direction can be issued to the respondents to pay the petitioner a remuneration/honorarium at par with the salary of regular teachers /lecturers of the institutions recognised by the Board, but at the same time it cannot be said that it is not justiciable issue and beyond the scope of judicial scrutiny where the action of the authorities are found to be highly arbitrary, unreasonable and contrary to the provisions of Article 23 of Constitution inasmuch as held to be against the public policy and violative of Section 23 of the Contract Act and Court's interference is absolutely necessary to undo injustice. Therefore, necessary directions can be issued in this regard. In this connection it is to be noted that it is not always necessary to engage part time teachers for full day work, rather their employment depends upon the need of work in contingencies contemplated under Section 7-A of U.P. Act No. 2 of 1921. In such facts and circumstances of the case, it would be appropriate to direct the State Government to fix honorarium/remuneration payable to the part time teachers on hour/ period basis and the honorarium so fixed should be paid for the period in which they are engaged. While doing so, the State Government is directed to take into account the working norms of teachers of institution recognized by the Board in the Government Order dated 20.11.1977, wherein the regular teachers of Intermediate classes i.e. lecturers are required to teach 30 periods/hours in a week, meaning thereby five period/ hours in a day and 30x4=120 periods/hours in a month. Thus in order to meet the ends of justice, the minimum pay scale without including dearness allowances and any other allowances and increments admissible to the regular lecturer may be divided by 120 for working out per period/ hour rate of remuneration and the amount so worked out is to be paid to the part time teachers /lecturers for the period in which they are engaged. While doing so, I should not be understood to say that the part time teachers or lecturers are intended to be accorded the benefits of minimum pay scale admissible to the regular teachers working on corresponding post in recognised institutions. Accordingly, the State Government is further directed to ensure the payment to the petitioner according to the aforesaid rate indicated above with effect from his date of appointment till date by asking the Committee of Management of the institution to make payment to the petitioner from its own resources and not from the State Exchequer. The amount already paid to the petitioner shall be adjusted towards arrears of honorarium/ remuneration payable to the petitioner. The petitioner shall also be entitled for payment of simple interest at annual rate of 5% on the arrears of remuneration payable to him. The aforesaid arrears and interest thereon shall be paid to the petitioner within a period of four months from the date of production of certified copy of this order before the respondents. The State Government is directed to complete exercise of fixation of honorarium payable to the petitioner within a period of two months from the date of production of certified copy of this order before the Secretary, Secondary Education, Government of Uttar Pradesh in the light of observations made in the judgment. The Committee of Management of the institution is directed to take necessary steps towards fixation of honorarium by the State Government payable to the petitioner and make payment to the petitioner according to the rate of remuneration fixed by the Government within the stipulated period indicated herein before.
46. In view of the aforesaid discussions and observations, the writ petition succeeds in part hence allowed partly.
47. There shall be no order as to costs.