Rajith Kumar v. State of Kerala and Director of Technical Education

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 14TH DAY OF MARCH 2017/23RD PHALGUNA, 1938 ## OP(KAT).No. 252 of 2014 (Z) ---------------------------AGAINST THE ORDER IN TA 2768/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER(S)/APPLICANT: ----------------------- RAJITH KUMAR WORKSHOP FOREMAN, TECHNICAL HIGH SCHOOL, VATAKARA, NUT STREET, VATAKARA-673104, RESIDING AT SAVERI, P.O.ONCHIYAM (VIA) CHOMBALA, KOZHIKODE DISTRICT. ## BY ADV. SRI.P.M.PAREETH RESPONDENT(S)/RESPONDENT: ------------------------- 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM-695001. BY GOVERNMENT PLEADER SMT.PRINCY XAVIER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 14-03-2017, ALONG WITH OPKAT. 254/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 252 of 2014 (Z) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS: ----------------------- - P1:TRUE PHOTOCOPY OF THE GOVT. CLARIFICATION NO.24208/PRU.1/96/FIN. DATED 24.6.1996. - P2: TRUE PHOTOCOPY OF THE DIPLOMA CERTIFICATE. - P3: TRUE PHOTOCOPY OF THE REPRESENTATION. - P4: TRUE PHOTOCOPY OF THE COMMUNICATION DATED 22.01.2002. - P5: TRUE PHOTOCOPY OF THE PROCEEDINGS NO.EC4/27180/93/DTR DATED 27.11.1997 ISSUED BY THE 2ND RESPONDENT. - P6: TRUE PHOTOCOPY OF THE PROCEEDINGS. - P7: TRUE PHOTOCOPY OF THE PROCEEDINGS NO.A1/2678/99/RDTEC/K.DIS DATED 10.3.2000. - P8: TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE GO(P) NO.3000/98/FIN DATED 25.11.1998. - P9: TRUE PHOTOCOPY OF THE GO(RT)NO.926/2004/H.EDN. DATED 12.07.2004. - P10:TRUE PHOTOCOPY OF THE JUDGMENT DATED 26.7.2007 IN OP NO.22975/2002. - P11: TRUE PHOTOCOPY OF THE GO(RT)NO.294/2008/H.EDN. DATED 19.2.2008. - P12: TRUE PHOTOCOPY OF THE REVIEW PETITION DATED 14.3.2008 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. - P13: TRUE PHOTOCOPY OF THE GOVT. LETTER NO.8996/J3/08/H.EDN. DATED 1.4.2009. - P14: TRUE PHOTOCOPY OF THE NOTE FILE NO.12252/E3/08/LAW ISSUED TO THE PETITIONER UNDER COVER OF THE LETTER DATED 03.06.2009. - P15: TRUE PHOTOCOPY OF THE LETTER DATED 11.11.2010 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, DEPARTMENT OF TECHNICAL EDUCATION. - P16:TRUE PHOTOCOPY OF THE GO(MS)NO.158/98/H.EDN. DATED 21.12.1998. - P17: TRUE PHOTOCOPY OF THE GOVT. CLARIFICATION NO.1966/L3/2000/H.EDN. DATED 6.7.2001. RESPONDENT(S)' EXHIBITS:NIL ----------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ## **========================== O.P. (KAT). Nos.252 & 254 OF 2014 ==========================** Dated this the 14[th] day of March, 2017 ## **JUDGMENT** _Ravikumar, J._ The issues involved in both the original petitions are essentially one and the same and the petitioners in both cases are working in the same cadre in the same Department viz., as Workshop Instructor in the Department of Technical Education. Therefore, these original petitions were jointly heard and are being disposed of by this common judgment. 2. The sole petitioner in O.P.(KAT).No.252 of 2014 entered into the service of the Technical Education Department as Workshop Instructor on 27.7.1989. The petitioners in the latter original petition entered in service as Workshop Attender/Trade Instructor on 1.6.1983 and 3.5.1982 respectively. Later, they were appointed as Workshop Instructors. On completion of 10 years service in the post of Workshop Instructor, they were granted the scale of pay of Rs.5500-9075 which is the scale of pay attached to the post of Engineering Instructor of the said department. The petitioners are **O.P.(KAT) 252 & 254/2014** 2 aggrieved by the scale of pay thus granted and according to them, they ought to have been given the scale of pay attached to the post of Assistant Lecturer, viz., Rs.6675-10550 on completion of 10 years service as it was the scale of pay which was granted to their counterparts in the aided polytechnics on completion of ten years of service. In such circumstances, the denial of the scale of pay attached to the post of Assistant Lecturer was challenged on the ground that it is violative of Articles 14 and 16 of the Constitution of India and also on the ground that it is nothing but a blatant violation of the salutory principle 'equal pay for equal work'. Earlier, the petitioner in the former original petition filed Ext.P3 representation dated 20.9.2001 before the Government. The said representation was rejected as per Ext.P4 order dated 22.1.2002. The petitioner filed O.P.No.22975 of 2002 before this Court challenging the said order. This Court, as per Ext.P10 judgment, disposed of the original petition with a direction to the Government to reconsider Ext.P4 order dated 22.1.2002 after affording the petitioner an opportunity of being heard. In compliance with the directions in Ext.P10 judgment, the matter was considered afresh with opportunity to the petitioner and it ultimately culminated in Ext.P11 order dated 19.2.2008. As per Ext.P11, the claim of the petitioner was rejected. Thereupon, the **O.P.(KAT) 252 & 254/2014** 3 petitioner filed Ext.P12 review petition before the Government. On its consideration, Ext.P13 order dated 1.4.2009 was passed affirming the decision in Ext.P11 order and rejecting the review petition. Thereupon, the petitioner approached this Court by filing W.P. (C).No.35246 of 2010 seeking quashment of Exts.P4, P11 and P14 and for a declaration to the effect that post of Assistant Lecturer was abolished in the department with effect from 31.5.2000 and that 21.12.1998 shall not be taken as the date of abolition of the said post and further to declare that the petitioner is entitled to get first higher grade in the scale of pay of Rs.6675-10550 on 28.3.1999. A consequential direction to the second respondent to re-fix his pay in the scale of pay with effect from 28.3.1999 was also sought for. The said writ petition was transferred to the Kerala Administrative Tribunal pursuant to its constitution and thereafter, it was renumbered as T.A.No.2768 of 2012. The said T.A was dismissed as per Annexure- A1 order dated 10.3.2014. It is challenging the said order that O.P(KAT) No.254/2018 has been filed. 3. As noticed earlier, the petitioners in the latter original petition entered in the service of the Technical Education Department as Workshop Attender/Trade instructor on 1.6.1983 and 3.5.1982 respectively. Later, they were appointed as Workshop Instructors on **O.P.(KAT) 252 & 254/2014** 4 15.12.1989 and 13.12.1989 respectively. On completion of 10 years service, they were given first Higher Grade on 15.12.1999 and 13.12.1999 respectively treating the post of Workshop Instructor as the entry post. On granting first Higher Grade promotion, their pay was fixed in the scale of pay of Rs.5500-9075 which was the scale of pay of the Engineering Instructors. They too, claimed that they are entitled to get pay in the scale of pay attached to the post of Assistant Lecturer, viz., Rs.6675-10550, on granting first Higher Grade. Aggrieved by the denial of scale of pay attached to the post of Assistant Lecturer, the petitioners raised their grievance before the Director of Technical Education. However, their requests were turned down respectively under Exts.P3 and P3 (a). Aggrieved by the said orders, they along with three others filed W.P.(C).No.6239 of 2005 before this Court. In fact, prior to the filing of the said writ petition, they made representations before the Government requesting that they should be granted Higher Grade in the scale of pay Rs.667510550. The said writ petition was disposed of as per Ext.P4(a) judgment whereby the Director of Technical Education was directed to consider the representations received from the petitioners and then pending before him which were marked as Exts.P8, P8(a) to P8(d). Based on the direction in the said judgment, the second respondent **O.P.(KAT) 252 & 254/2014** 5 passed Ext.P5 order dated 16.8.2007. Evidently, as per the same, the petitioners were informed that their request for granting the scale of pay of Rs.6675-10550 could not be granted. Thereupon, the petitioners approached this Court by filing W.P.(C).No.17243 of 2011 seeking quashment of the orders leading to Ext.P3 series and Ext.P5. Consequential directions were also sought for. Pursuant to the constitution of the Kerala Administrative Tribunal, the said writ petition was also transferred to the KAT and re-numbered as T.A.No.6442 of 2012. The said T.A.was dismissed relying on the order in T.A.No.2768 of 2012. It is challenging the order in T.A.No.6442 of 2012 that the latter original petition has been filed. 4. We have heard the learned counsel for the petitioners and also the learned Government Pleader. 5. Obviously, several grounds have been raised by the petitioners to mount challenge against the orders passed by the Tribunal in their respective Transferred Applications. Essentially, the contention of the petitioners is that on completion of 10 years' service they are not entitled to get the first higher grade in the scale of pay of ₹6675 - 10550 attached to the post of Assistant Lecturer and the respondents had wrongly granted the scale of pay of 5,500-9075₹ attached to the post of Engineering Instructor. The core contention **O.P.(KAT) 252 & 254/2014** 6 of the petitioners is that the stand of the respondents that post of Assistant Lecturer was not in existence in the Technical Education Department is not true to facts. It is contended that there was no abolition of the said post and in support of the said contention it is submitted that the subsequent pay revision orders like Ext.P8 would reveal that the scale of pay in respect of the post of Assistant Lecturer in the Technical Education Department was continued to be revised under such pay revision orders. It is further contended that a scanning of Ext.P16 dated 21.12.1998 would reveal that virtually, there was no abolition of the said post. The learned counsel appearing for the petitioner contended that the said order itself would reveal that even after Ext.P16 order some persons continued to be there in the post of Assistant Lecturer. Yet another contention was also taken to assail the order of the Tribunal. According to the petitioners, Exts.P5, P6 and P7 would reveal that even after 28.2.1997 the post of Workshop Instructor continued to be there in Aided Polytechnics and such persons who were then holding the said post were given pay in the scale of pay of Assistant Lecturers on being granted the higher grade on completion of 10 years' service. The contention is that, in such circumstances, denying pay in the scale of pay attached to the post of Assistant Lecturers only to the **O.P.(KAT) 252 & 254/2014** 7 Workshop Instructors on completion of 10 years' service in Aided Polytechnics would amount to violation of the salutary principle of `equal pay for equal work'. In other words, the contention is that as has been done in the case of Workshop Instructors in Aided Polytechnics on granting first higher grade on completion of 10 years' service the Workshop Instructor working in the Technical Department like the petitioners also should have been granted the scale of pay attached to the post of Assistant Lecturer. 6. The learned Government Pleader resisted the contention and submitted that the contention of the petitioners that the post of Assistant Lecturer was not abolished as per Ext.P16 is bereft of any basis and merits. It is contended that a bare perusal of the said order would reveal that pursuant to the adoption of the staff pattern in tune with the AICTE approved staff structure the post of Assistant Lecturer in Polytechnics was abolished. Pursuant to the introduction of the staff pattern in tune with the AICTE approved staff structure 209 posts of Assistant Lecturer in the Department were abolished and consequently it was ordered to create 175 posts of Lecturers and 8 posts of Head of Section. It is submitted that Ext.P16 would further make it clear that the post of Assistant Lecturers held by incumbents having the qualifications prescribed for the post of Lecturer were to **O.P.(KAT) 252 & 254/2014** 8 be upgraded as Lecturers and the incumbents who are holding the said post but not qualified to be appointed as Lecturers were permitted to continue in service as Assistant Lecturers solely for the purpose of permitting them to retire from the said post. The said order would make it clear that in that manner the remaining post of Assistant Lecturers would be abolished in a phased manner as and when the incumbents vacate the post by promotion, retirement or by any other reason. In the light of the aforesaid position discernible from Ext.P16 the learned Government Pleader submitted that the post of Assistant Lecturer was in fact, abolished. The continuance of the unqualified hands in the post of Assistant Lectures on the strength of Ext.P16 cannot be a reason for contending that in the Department the post of Assistant Lecturer continued to be in existence. 7. With respect to the contention that denial of equal pay for equal work it is contended that there is absolutely no room for raising the contention of disparity in the matter of pay between the Workshop Instructors in the Department and Aided Polytechnics. The learned Government Pleader further submitted that indisputably the counterparts of the petitioners in the Aided Polytechnics are also being paid the same scale of pay of Workshop Instructor and the **O.P.(KAT) 252 & 254/2014** 9 mere fact that on granting the first higher grade on completion of 10 years' service they are getting a higher scale of pay due to financial upgradation cannot be a reason for the petitioners to canvass that there is violation of the principles of equal pay for equal work. In elaboration of the said contention it is contended that the said situation occurred because in Technical Education Department owing to the impact of Ext.P16 for all practical purposes other than the one permitted thereunder, the post of Assistant Lecturer became nonexistence whereas, in Aided Polytechnics the said post was abolished only in the year 2000. In such circumstances, in respect of Workshop Instructors who completed 10 years' service and those got eligibility for getting first higher grade and consequently the scale of pay attached to the post of Assistant Lecturer they were granted the said benefit as, at that point of time, the post of Assistant Lecturer was in existence in Aided Polytechnics. The learned Government Pleader would further submit that after the abolition of the post of Assistant Lecturer in Aided Polytechnics the pay fixation based on the scale of pay of Assistant Lecturer was not given to any Workshop Instructors on completion of 10 years' service. 8. On a careful analysis of the rival contentions in the light of the materials on record, we are of the view that there can be no **O.P.(KAT) 252 & 254/2014** 10 dispute with respect to the fact that the Workshop Instructors in the Technical Education Department and their counter parts in the aided Polytechnics are having the same scale of pay. On completion of 10 years' service in that cadre without promotion they are entitled to get the first higher grade to ameliorate stagnation. In the case of the petitioners who are working in the Technical Education Department they were granted the first higher grade on completion of 10 years of service and they were given the scale of pay of Rs.5500-9075, the scale of pay attached to the post of Engineering Instructor. True that their counter parts in the aided Polytechnics on being granted the first higher grade on completion of 10 years' service, even upto the year 2000, were given pay in the scale of pay of Rs.6675-10550, the scale of pay attached to the post of Assistant Lecturer. The bone of the contention is that denial of the scale of pay of Assistant Lecturer in the scale of pay of Rs.6675-10550 to petitioners who belong to the Technical Education Department is violative of Article 14 of the Constitution of India, besides being violative of the principle of equal pay for equal work. It is thus obvious that the disparity alleged, admittedly occurred pursuant to the grant of first higher grade on completion of ten years' service. 9. Before proceeding further, we are of the view that it is only **O.P.(KAT) 252 & 254/2014** 11 proper and profitable to consider the enunciation of law in regard to the question of disparity in such circumstances. The learned counsel for the petitioners relied on various decisions such as **Randhir Singh** v. **Union of India (AIR 1982 SC 879)** , **State of H.P.** v. **Recognised & Aided Schools Managing Committees [(1995) 4 SCC 507]** , **State of Haryana** v. **Rajpal Sharma [(1996) 5 SCC 273]** and **State of Punjab** v. **Jagjit Singh [ILR 2016 (4) Kerala 419]** . There cannot be any doubt with respect to the position that on a subject matter or on an issue, if various precedents are there, the last among them rendered considering the earlier decisions alone need be considered. In such circumstances, we are of the view that for the purpose of appreciating the rival contentions, it is only relevant to refer to the decisions of the Apex Court in **Jagjit Sing's case (supra)** . A careful scrutiny of the said decision would reveal that the Apex Court had considered the various parameters for deciding the applicability of equal pay for equal work in relation to the grievances of persons based on denial of equal pay for equal work. Essentially, the Apex Court considered the various circumstances where differential higher pay scale could be extended, despite the fact that the categories are performing the same or similar functions and having duties and responsibilities. We have already taken note **O.P.(KAT) 252 & 254/2014** 12 of the fact that in the case on hand, the alleged denial of the principle of equal pay for equal work had occasioned as an impact of grant of the first higher grade being given to ameliorate stagnation. Such a situation was considered by the Apex Court in Jagjit Sing's case (supra) with reference to its earlier decision in **Hukum Chand Gupta** v **. Director General, Indian Council of Agricultural Research** reported in **[(2012) 12 SCC 666]** . Evidently, the Apex Court after considering all the earlier precedents and the various contentions in Para.42 therein held thus:- - “... Our consideration, has led through us to the following deductions; Sub-para (xvi) is relevant for the purpose of consideration of this case. “(xvi) The principle of ‘equal pay for equal work’ would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues ”. 10. It is obvious that the above extracted portion from the judgment of the Hon'ble Apex Court in **Jagjit Singh** 's case, with reference to its earlier decision in **Hukum Chand Gupta** 's case, that **O.P.(KAT) 252 & 254/2014** 13 the principle of equal pay for equal work would not be applicable inviolably in all cases where persons discharging the same duties and holding the same designation if a higher pay scale is granted with the objective of ameliorating stagnation. In such circumstances, it could not be held that it would violate the principle of 'equal pay for equal work'. But certainly, the contention of the petitioner is that the said decision is inapplicable in the facts of this case, as the differential higher pay scale was granted with respect to the same category discharging same duties and holding the same designation, not solely for the purpose of ameliorating stagnation. The contention is that the petitioners who are Workshop Instructors in the Technical Education Department and their counter parts in the aided Polytechnics are discharging the same duties and holding the same designation. Evidently, on completion of 10 years' service without any promotion, with the objective of ameliorating stagnation, both of them were granted first higher grade. On being granted first higher grade, the persons like the petitioners belonging to the Technical Education Service, after the date of Ext.P16, were virtually denied the scale of pay attached to the post of Assistant Lecturer and in the case of their counter parts in aided Polytechnics even after that date, till the year 2000, they were continued to be granted the scale of pay attached to **O.P.(KAT) 252 & 254/2014** 14 the post of Assistant Lecturer on granting the first higher grade on completion of 10 years' service. In other words, in the case of persons in the Technical Education Service, on completion of 10 years' of service and on being granted the first higher grade, they were being given pay fixation in the scale of pay of Rs.6675-10550, the scale of pay attached to the post of Assistant Lecturer till 21.12.1998. Presumably this was so done, as under Ext.P16 dated 21.12.1998, the post of Assistant Lecturer was abolished in Technical Education Department. At the same time, the contention of the respondents is that in aided Polytechnics, the post of Assistant Lecturer continued even thereafter till 31.5.2000. The fact that earlier the persons belonging to the cadre of Workshop Instructors on completion of 10 years' service and on granting the first higher grade were being given pay fixation in the scale of pay of Assistant Lecturer, viz; 6675-10550 is not in dispute. Evidently, in respect of persons like the petitioners, it was being denied solely on the ground that the post of Assistant Lecturer ceased to be in existence in the Technical Education Department after Ext.P16 and at the same time, according to the respondents, the said scale of pay was given to their counter parts in the aided Polytechnics as the post of Assistant Lecturer continued there upto 31.5.2000. The contention of the **O.P.(KAT) 252 & 254/2014** 15 petitioners is that in such circumstances, the decision in **Hukum Chand Gupta** 's case which was relied on by the Apex Court in Jagjit Sing's case (supra) got no application. That apart, it is contended that the very contention of the petitioners that the post of Assistant Lecturer was abolished in the Technical Education Department under Ext.P16 is also not true to facts. Thus, what could be assimilated from the rival contentions is that although the scale of pay of Workshop Instructor both in the Department and in aided Polytechnics is the same, the differential higher pay was extended to the counter parts of the petitioners in the aided polytechnics, solely because of the fact that at the relevant point time, i.e., upto 31.5.2000, the post of Assistant Lecturer continued to be a post borne in the cadre of Aided Polytechnics and at the same time in Technical Education Department, the said post was abolished under Ext.P16 with effect from 31.5.2000. Therefore, the question whether that could be a reason for denying equal pay though both categories are discharging the same duties and holding the same designation. 11. We will firstly, consider the contention of the petitioners that the stand of the respondents to the effect that the post of Assistant Lecturer was abolished under Ext.P16 is nothing but a misconstruction of the relevant Government Order, rather, the said **O.P.(KAT) 252 & 254/2014** 16 state of stand is not true to facts as discernible from Ext.P16 itself. Evidently, the foundation for such a contention is that there is a recital in Ext.P16 itself to the effect that the unqualified Assistant Lecturers could continue in service even beyond the date of Ext.P16. The learned counsel for the petitioners submitted that though under Ext.P16, it was ordered to upgrade the post of Assistant Lecturers held by qualified incumbents to the post of Lecturers, the very same order provides for continuation of unqualified hands in the very post of Assistant Lecturer itself. In such circumstances, it is contended that when such unqualified hands are continuing in the post of Assistant Lecturers, the respondents cannot be heard to contend that the very post of Assistant Lecturer was abolished in the Technical Education Department. In short, the contention is that the stand of the respondents in such circumstances can only be taken as a ruse to deprive the petitioners the benefit of fixation of pay based on the scale of pay attached to the post of Assistant Lecturer. The learned Government Pleader strongly resisted the above contention and submitted that the tenor of Ext.P16 itself would reveal that the post of Assistant Lecturer was abolished based on the adoption of the AICTE approved staff structure in Technical Education Department. The learned Government Pleader drew our attention to Para.2 of **O.P.(KAT) 252 & 254/2014** 17 Ext.P16 order containing the following recitals: “.... As a result, when the staff pattern is introduced, 209 posts of Assistant Lecturers will have to be abolished and 175 posts of Lecturers and 8 posts of Head of Section will have to be created. Since many of the Assistant Lecturers are qualified for promotion as Lecturers, instead of crating 175 posts of Lecturers, the post of Assistant Lecturer can be upgraded as Lecturers and qualified Assistant Lecturers can be promoted and posted in the upgraded posts. The remaining posts of Assistant Lecturers can be abolished in a phased manner as and when the incumbent vacates the posts by promotion, retirement or any other reason. ..” 12. In the light of the above extracted portion, it is contended by the learned Government Pleader that for all practical purposes, on adoption of the AICTE approved staff structure, the post of Assistant Lecturer was abolished in Technical Education Department. The mere fact that the unqualified hands are continuing and the decision to abolish it in a phased manner as and when such incumbents vacate the post by promotion, retirement or any other reason could not be taken as a ground to canvass the position that there was no abolition of the post of Assistant Lecturer in the Technical Education Department. **O.P.(KAT) 252 & 254/2014** 18 13. As is obvious from Ext.P16, consequent to the proposal to adopt AICTE staff structure, a decision was taken to abolish the post of Assistant Lecturer in the Technical Education Department and evidently, the standard staff pattern proposed was approved. Paragraph 2 of Ext.P16 would reveal that as and when the same is approved, rather, the standard staff pattern is introduced, 209 posts of Assistant Lecturers would be abolished. Thus, it is evident that the question of abolition of the said post is a consequence of the decision approving the adoption of standard staff pattern. Government had also taken into consideration the fact that all the incumbents holding the post of Assistant Lecturer were not possessing the requisite qualification for appointment to the post of Lecturer and therefore, Government upgraded only those posts which were manned by qualified Assistant Lecturers. In respect of unqualified Assistant Lecturers, the post held by them in the cadre of Assistant Lecturers were allowed to be continued solely for the purpose of enabling those persons to retire from service. In other words, such remaining post of Assistant Lecturers were ordered to be abolished in a phased manner as and when the incumbent holding the said post vacates the posts by promotion, retirement or any other reason. In such circumstances, continuation of such posts is solely for that limited **O.P.(KAT) 252 & 254/2014** 19 purpose and to protect those unqualified hands. For all other purposes, it has to be held that subsequent to Ext.P16 order, the post of Assistant Lecturer is non-existing in the Technical Education Department. The persons who reached the post of Assistant Lecturer prior to the issuance of Ext.P16 on the ground of not qualified for appointment to the post of Lecturer could not have been shown the door as they were qualified to hold the post of Assistant Lecturer. When the post of Assistant Lecturer was abolished and the persons who were not qualified to hold the post of Lecturer, except the decision which was actually taken under Ext.P16, there was no other option to tide over the said situation. They could not have been reverted to the lower post on the ground of being unqualified to hold the post of Lecturer. The posts held by them could not have been upgraded and they could not have been promoted to the post of Lecturer. In such circumstances, to protect the unqualified persons holding the post of Assistant Lecturer despite the decision in Ext.P16, the only decision that could be taken was in the nature of the decision which was actually taken under Ext.P16. The question is whether that could be a reason for the Workshop Instructors to claim that the post of Assistant Lecturer is still existing even after Ext.P16 so as to enable them to claim the scale of pay attached to that post on getting **O.P.(KAT) 252 & 254/2014** 20 the first higher grade. When a post is non-existing in the eye of law, there cannot be any question of taking into account the scale of pay which was attached to that particular post. True that the unqualified incumbents must have been continued to draw salary in that scale of pay. In such circumstances, we do not find any reason to hold that the decision of the Government in turning down the request of the applicant to treat that the post of Assistant Lecturer is existing and to consider granting of first higher grade in the scale of pay attached to the post of Assistant Lecturer, subsequent to Ext.P16, as regards those workshop instructors who obtained first higher grade on completion of 10 years service subsequent to Ext.P16, as illegal. 14. In such circumstances, the question is whether the fixation of pay in the scale of pay attached to the post of Assistant Lecturer as relates Workshop Instructors in the aided polytechnics on getting first higher grade on completion of 10 years service even after 21.12.1998, the date of Ext.P16 up to 31.5.2000 could be a reason for the petitioners to canvass the position that it would amount to violation of the principle of 'equal pay for equal work'. We have already noticed that the precise case of the Government is that in aided polytechnics, the post of Assistant Lecturer was not abolished under Ext.P16 and it was in fact, abolished only on a later point of **O.P.(KAT) 252 & 254/2014** 21 time with effect from 31.5.2000. When the post of Assistant lecturer was not abolished in aided polytechnics, in stricto senso, it cannot be said that the department had faulted in granting fixation of pay in the scale of pay attached to the post Assistant Lecturer on granting the first Higher Grade in respect of workshop Instructors on completion of 10 years service. Thus, it is obvious that in aided polytechnics, owing to the delay in taking the decision to abolish the post of Assistant Lecturer, the said post continued till 31.5.2000 and when the post of Assistant Lecturer continued, the eligible persons under Workshop Instructors to get pay fixation on getting first Higher Grade in the scale of pay attached to the post of Assistant Lecturer could not have been denied. In such circumstances, it is evident that the petitioners cannot be heard to contend that the department had shown an invidious discrimination in the matter of granting the scale of pay attached to the post of Assistant Lecturer, upon granting higher grade. The reason that constrained to deny the scale of pay attached to the post of Assistant Lecturer in relation to the Workshop Instructors who was granted the first higher grade in the Technical Education Department, in the circumstances cannot be said to be faulty or illegal warranting an interference. In fact, all these situations were properly considered by the **O.P.(KAT) 252 & 254/2014** 22 Tribunal which ultimately culminated in the order in T.A.2768 of 2012. We do not find any reason to interfere with the order passed by the Tribunal in T.A.2768 of 2012 which was assailed in O.P. (KAT).252 of 2014. As noticed hereinbefore, the impugned order in T.A.6442 of 2012 was passed by the Tribunal relying on its earlier decision in T.A.2768 of 2012. Since we affirmed the decision of the Tribunal in T.A.2768 of 2012, there is no reason to interfere with the order in T.A.6442 of 2012, as well. The long and short of the discussions is that there is no merit in the challenge against the orders in T.A.2768 of 2012 as also the order in T.A.6442 of 2012 and consequently, O.P.(KAT).Nos.252 and 254 of 2014 are liable to fail. Accordingly, they are dismissed. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/tks/dsn** # **O.P.(KAT) 252 & 254/2014** 23 # **O.P.(KAT) 252 & 254/2014** 24 # **O.P.(KAT) 252 & 254/2014** 25 # **O.P.(KAT) 252 & 254/2014** 26