judgement:
on of application of princi ple of 'Equal Pay for Equal Work ' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned.
If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is rounded on unreal, and unreasonable basis it would be viola tive of Article 14 and 16 of the Constitution.
Equality must be among the equals, unequals cannot claim equality.
[962G H; 963A B] & ORIGINAL JURISDICTION: Writ Petition (Civil) No. 4611 of 1983.
(Under Article 32 of the Constitution of India) Gobinda Mukhoty and K.N. Rai for the Petitioner. A. Mariarputham for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
By means of this petition under Article 32 of the Constitution the petitioner has raised a grievance that the Respondent Authorities have practised discrimination in violation of Articles 14 and 16 of the Constitution in refusing to pay him salary in the scale of pay prescribed for similarly placed employees.
He has invoked the doctrine of "Equal Pay for Equal Work" as enshrined under Article 39(d) of the Constitution.
In order to appreciate petitioner 's grievance it is necessary to refer to relevant facts giving rise to this petition.
The petitioner was initially appointed in 1967 to the post of Teacher Co ordinator in the pay scale of Rs.2 10 425 in the Research Project "Rehabilitation Unit in Audiology and Speech Pathology" a project funded by the Indian Council of Medical Research under PL 480 research scheme with the special assistance of the Social Rehabilita tion Services (formerly Vocational Rehabilitation Adminis tration).
The aforesaid unit was taken over by the All India Institute of Medical Sciences on 1.7. 1970 alongwith the staff attached to the said unit.
The petitioner 's services stood transferred to the All India Institute of Medical Sciences (hereinafter referred to as the Institute) and the petitioner continued to hold the post of Teacher Coordinator in the Institute.
On the recommendation 961 of the Head of the Department of Rehabilitation Unit the petitioner 's post was redesignated as 'Hearing Therapist ' with effect from 3.8.
1972 but he continued to draw the salary in the same scale of pay of Rs.210425.
In pursuance to the recommendations of the Third Pay Commission as adopt ed by the Institute the pay scale of Hearing Therapist was revised to Rs.425 700 with effect from 1.1.1973.
Since then the petitioner has continued to draw salary in the pay scale of Rs.425 700.
The petitioner made several representations to the respondentauthorities to revise his pay scale and to place him in the pay scale prescribed for the "Speech Pa thologist" and "Audiologist" in the pay scale of Rs.650 1200.
Since no relief was granted to him he invoked the jurisdiction of this Court by means of this petition under Article 32 of the Constitution.
The petitioner 's main grievance is that 'Hearing Thera pist ' perform the same duties and functions as 'Senior Speech Pathologist ', 'Senior Physiotherapist ', 'Senior Occupational Therapist ', 'Audiologist ', and 'Speech Patholo gist ', yet the respondents have practised discrimination in paying salary to the petitioner in a lower scale of pay.
The petitioner has asserted that the qualification prescribed for the aforesaid posts are almost similar and they are working in the same institution under the same employer but the respondent authorities have practised discrimination in refusing to accept the petitioner 's claim for equal pay.
The petitioner has further raised a grievance that the Third Pay Commission ignored the claim of 'Hearing Therapist ' although it has granted higher scale of pay for similar posts of 'Speech Therapist ', 'Senior Speech Pathologist ' and 'Audiol ogist '.
He has asserted that Speech Therapists performing similar kind of duties as performed by the petitioner have been granted higher pay scale in other organisations like Safdarjang Hospital, P.G.I. Chandigarh, Medical College Rohtak and Ali Yaver Jung National Institute for the Hearing Handicapped, Hyderabad.
The petitioner contends that the respondents have failed to implement the Directive Princi ples of 'Equal Pay for Equal Work ' as contained in Article 39(d) of the Constitution in violation of Articles 14 and 16 of the Constitution.
He has claimed relief for the issuance of writ of mandamus directing the respondents which include All India Institute of Medical Sciences and Union of India for fixing the petitioner 's pay in the scale of Rs.400 950 with effect from 1.1.1970 and thereafter in the scale of Rs.650 1200 with effect from 1.1.1973.
In defence the re spondents assert that the petitioner cannot compare himself with Senior Speech Therapist, Senior Physiotherapist, Senior Occupational Therapist, Audiologist or Speech Therapist as qualifications, duties and functions of those posts 962 are altogether different and distinct from those prescribed for Hearing Therapist.
There is no equality between the petitioner and persons holding the aforesaid posts.
The Institute has created different posts with different pay scales having regard to the qualifications, duties, func tions and responsibilities of the posts.
The petitioner is not entitled to equate himself with the incumbents holding the posts of Senior Speech Therapist, Senior Physiothera pist, Senior Occupational Therapist, Audiologist and Speech Therapist.
The petitioner 's plea of discrimination is em phatically denied.
The doctrine of "Equal Pay for Equal Work" is not ex pressly declared a fundamental fight under the Constitution.
But Article 39(d) read with Articles 14 and 16 of the Con stitution declares the constitutional goal enjoining the State not to deny any person equality before law in matters relating to employment including the scales of pay.
Article 39(d) read with Articles 14 and 16 of the Constitution enjoins the State that where all things are equal and person holding indentical posts, performing indentical and similar duties under the same employer should not be treated differ ently in the matter of their pay.
The doctrine of 'Equal Pay for Equal Work ' is not abstract one, it is open to the State to prescribe different scales of pay for different posts having regard to educational qualifications, duties and responsibilities of the post.
The principle .of 'Equal Pay for Equal Work ' is applicable when employees holding the same rank perform similar functions and discharge similar duties and responsibilities are treated differently.
The application of doctrine would arise where employees are equal in every respect but they are denied equality in matters relating to the scale of pay.
The principle of "Equal Pay for Equal Work" has been enforced by this Court in Randhir Singh vs Union of India & Ors., ; ; Dhirendra Chamoli & Anr.
vs State ofU. P., ; V.J. Thomas & Ors.
vs Union of India & Ors.
,[1985] (Supp.) SCC 7; P. Savita vs Union of India & Ors., [1985] (Supp.) SCR 101; Bhagwan Dass vs State of Haryana, [1987] 4 SCC 634 and Jai Pal & Ors.
vs State of Haryana & Ors.
, [1988] 3 SCC 354.
In all these cases this Court granted relief on the application of the doctrine of 'Equal Pay for Equal Work '.
While considering the question of application of prin ciple of 'Equal Pay for Equal Work ' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned.
If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing 963 different pay scale but if the classification does not stand the test of reasonable nexus and the classification is rounded on unreal, and unreasonable basis it would be viola tive of Articles 14 and 16 of the Constitution.
Equality must be among the equals, Unequals cannot claim equality.
In the writ petition, the petitioner claimed parity with the pay scale prescribed for Senior ' Speech Therapist, Senior physiotherapist, Senior Occupational Therapist, Audiologist and Speech Pathologist but during the course of hearing Sri Gobind Mukhoty, learned counsel for the peti tioner confined the petitioner 's case for parity with 'Aud iologist ' only.
He urged that the educational qualifica tions, duties and functions of 'Hearing Therapist ' and 'Audiologist ' are similar, if not the same, and there is no reasonable justification for prescribing lower pay scale of pay to Hearing Therapist.
A Hearing Therapist is required to treat the deaf and other patients suffering from hearing defects.
His function is to help in rehabilitation of those whose hearing capacity is impaired.
The Hearing Therapist 's main function is to train the patient to facilitate maximum expressive and receptive communication skill.
An 'Audiolo gist ' pertains to the science of hearing.
His work is de signed to coordinate the separate professional skills which contribute to study, treatment and rehabilitation of persons with impaired hearing.
A person holding the post of Audiolo gist is a specialist in the non medical evaluation, habili tation and rehabilitation of those who suffer from language and speech disorders.
Generally, Hearing Therapist and Audiologist both perform duties and functions is helping rehabilitation of patients suffering from hearing disorders, their duties and functions appear to be similar, but the petitioner has not placed material before the Court to demonstrate that the duties and functions performed by Hearing Therapist is same or similar as that performed by an Audiologist.
The petitioner has placed reliance on a certif icate issued by the Head of Department of Otorhinolaryngolgy which enumerates duties, functions which the petitioner has been performing while working as Hearing Therapist.
Accord ing to this certificate the petitioner has been carrying out the following functions: "1.
Diagnosis of the impairment of hearing cases.
(Detailed diagnosis).
Audiological evaluation i.e. heating aid evaluation, hearing and prescription and autitory training.
964 3.
Parent counselling and guidance.
Referring to different experts for their opinion such as Physiotherapist, Occupational Therapist, Clinical Psy chologist, Ear Mould Technician, Paediatrician, Paediatric Neurologist and Opthalmologist, Audiometry Technical and to ENT Specialist.
Speech and language therapy.
Integration of hearing handicapped with normal persons.
Integration of hearing loss children with normal hearing children.
Guidance to the teachers of normal schools where there is any hard of heating case is studying.
Writing of papers and books on the basis of personal experience and research.
Speech therapy to normal hearing persons as and when referred to them.
Referring the hearing handicapped children to special schools for the deaf and when a child is unable to study in a normal school.
Educational rehabilitation of any age group of hear ing loss cases. ' ' The petitioner has, however, failed to place material before the Court showing the corresponding duties and functions of an Audiologist in the Institute.
In the absence of duties and functions of an Audiologist it is not possible for the Court to record findings that the duties and functions performed by Hearing Therapist is similar to those performed by an Audiologist more so when the respondents have denied the petitioner 's claim in the counter affidavit.
The peti tioner 's claim that he performs the same duties and func tions as those performed by an Audiologist under the same employer cannot therefore be accepted.
Even assuming that the petitioner performs similar duties and functions as those performed by an Audiologist, it is not sufficient to 965 uphold his claim for equal pay.
As already observed, in judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifications, qualitative differ ence and the measures of responsibility prescribed for the respective posts.
Even if the duties and functions are of similar nature but if the educational qualifications pre scribed for the two posts are different and there is differ ence in measure of responsibilities, the principle of 'Equal Pay for Equal Work ' would not apply.
Under the relevant Rules framed by the Institute qualifications for the two class of posts, namely, Audiologist and Hearing Therapist ' are as under: Audiologist Qualifications Hearing Therapist Qualifications Essential Essential 1.
A graduate in Science/ 1.
A graduate in Science or Arts or Medicines, from Arts of a recognised Univer a recognised University.
sity in India or abroad.
Master 's degree in Audiology 2.
Trained teacher for the or Otolaryngology from a deaf, such as Certified recognised Institution/ Teacher for Deaf University (C.T.D . Dip.) 3.
Three years teaching/ 3.
Teaching experience at a research experience in recognised school for the deaf the field of Audiology.
in India for not less than three years.
Desirable 1.
Ph.D. in Audiology from a recognised University.
Practical experience of working in a speech and Hearing Rehabilitation Centre.
Journalistic or literary activity in relation to Audiology.
966 A perusal of the above chart would show that different educational qualifications are prescribed for the two posts.
For an Audiologist a Master 's Degree in Otolaryngology or Audiology is an essential qualification but no such Master 's Degree is prescribed for Hearing Therapist instead a diploma as Certified Teacher for Deaf is the essential qualification for the said post.
A comparison of the qualifications pre scribed for the two posts clearly indicates that higher qualification is prescribed for the post of Audiologist.
There appears to be qualitative difference in the responsi bilities of the two posts as an Audiologist possesses higher qualification.
It is therefore manifest that on the basis of educational qualifications two posts cannot be equated.
Even if the functions and duties of two posts are similar it is open to the State to prescribe different scales of pay on the basis of difference in educational qualifications.
Different treatment to persons belonging to the same class is a permissible classification on the basis of educational qualifications.
There are several decisions of this Court where educa tional qualifications have been recognised as a valid basis for classification.
In State of Mysore vs Narasingh Rao, ; this Court held that higher educational qualifications such as success in S.S.L.C. examination are relevant considerations for fixation of higher pay scale for tracers who had passed the S.S.L.C. examination and the classification of two grades of tracers in Mysore State, one for matriculate tracers with higher pay scale and the other for non matriculate tracers with lower pay scale, was held valid.
It is pertinent to note that matriculate and non matriculate tracers both constituted the same service per forming the same duties and functions, yet the Court held that higher pay scale prescribed for the matriculate tracers on the basis of higher educational qualification was not violative of Articles 14 and 16 of the Constitution.
In Union of India vs Dr. (Mrs.) S.B. Kohli, ; classification made on the basis of educational qualifica tion for purposes of promotion was upheld by this Court on the ground that the classification made on the basis of such a requirement was not without reference to the objectives sought to be achieved and there could be no question of discrimination.
In State of Jammu & Kashmir vs Triloki Nath Khose & Ors., ; cadre of Assistant Engineers included of Degree holders and Diploma holders, they consti tuted one class of service but for promotion to the post of Executive Engineers only those Assistant Engineers were eligible for promotion who possessed Bachelor 's Degree in Engineering and the Diploma holders were eligible only if they had put in 7 years minimum service no such restriction was prescribed for Degree holders.
The 967 Diploma holder Assistant Engineers challenged the validity of the rule on the ground that it denied them equal opportu nity of promotion, in violation of Articles 14 and 16 of the Constitution.
On a detailed consideration a Constitution Bench of this Court upheld the classification on the ground of difference in educational qualification.
The Court held that classification rounded on the basis of educational qualification had a reasonable nexus to achieve administra tive efficiency in Engineering Services.
The Court approv ingly referred to the decisions of the Court in State of Mysore vs Narasing Rao, ; ; Ganga Ram vs Union of India, ; and Union of India vs Dr. (Mrs.) S.B. Kohli, ; The Court upheld the classifi cation and refused to grant any relief to Diploma holder Engineers.
In Mohammad Shujat Ali & Ors.
vs Union of India & Ors.
; , another Constitution Bench of this Court upheld the classification of Supervisors into two classes, graduates and non graduates for the purpose of promotion to the post of Assistant Engineers on the ground of educational qualification although both the class of supervisors constituted the same service.
In Federation of All India Customs & Central Excise Stenographers (Recog nised) & Ors.
vs Union of India & Ors.
, ; claim of Personal Assistants and Stenographers attached to the Head of Departments in the Customs and Central Excise Department of the Ministry of Finance for equal pay in parity with the Personal Assistants and Stenographers at tached to the Joint Secretaries and Officers above them in the Ministry of Finance was rejected by this Court on the ground of the functional requirement of the work done, training, and responsibility prescribed for the two posts.
In State of U.P. & Ors.
vs Sh.
J.P. Chaurasia & Ors., ; the question arose whether it was permissible to have two different pay scales in the cadre of Bench Secre taries, for persons performing the same duties and having the same responsibilities.
In the light of the various decisions of this Court it was held that the principle of "equal pay for equal work", has no mechanical application in every case of similar work.
Articles 14 and 16 permit rea sonable classification rounded on rational basis, it is, therefore, permissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority.
The Court held that in such a situation the principle of equal pay for equal work did not apply.
We would like to emphasise that the principle of equal pay for equal work cannot be invoked invariably in every kind of service, particularly, in the area of professional services.
In Dr. C. Girijambal vs Government of Andhra Pradesh, ; it was contended 968 before the Court that medical officers holding the degree of Graduate from the College of Integrated Medicine (GCIM) and holders of Licentiate in Indigenous Medicine (LIM) performed the same functions and discharged the same duties in dispen saries and therefore on the principle of "equal pay for equal work" both class of persons were entitled to the same scale of pay.
Medical officers holding the qualifications of GCIM or the qualification of LIM or the qualification of Diploma in Ayurvedic Midicine (DAMO), being in charge of dispensaries run by Zilla Parishads were not treated alike as the State Government had prescribed different scales of pay for.
medical officers.
On behalf of the aggrieved Doc tors it was contended that the functions and duties dis charged by the three class of doctors in the dispensaries run by Zilla Parishads were the same and their qualifica tions were also similar and yet the State Government prac tised discrimination in prescribing different scale of pay for them.
This Court held that the principle of equal pay for equal work could not be invoked or applied in the area of professional services like medical practioners.
The Court observed as under: "Dealing with the first contention we would like to observe at the outset that the princi ple of equal work cannot be invoked or applied invariably in every kind of service and cer tainly it cannot be invoked in the area of professional service when these are to be compensated.
Dressing of any injury or wound is done both by a doctor as well as a com pounder, but surely it cannot be suggested that for doing this job a doctor cannot be compensated more than the compounder.
Similar ly, a case in Court of law is argued both by a senior and a junior lawyer, but it is diffi cult to accept that in matter of remuneration both should be treated equally.
It is thus clear that in the field of rendering profes sional services at any rate the principle of equal pay for equal work would be inapplica ble.
In the instant case Medical officers holding the qualification of GCIM, or the qualification of LIM or the qualification of DAM, though in charge of dispensaries run by Zilla Parishads cannot therefore, be treat ed on par with each other and if the State Government or the Zilla Parishads prescribe different scales of pay for each category of Medical officers no fault could be found with such prescription.
" We fully agree with the above observations and accord ingly we hold that in the instant case since the Hearing Therapist and 969 Audiologist both render professional services and there is qualitative difference between the two on the basis of educational qualification the principle of equal pay for equal work cannot be invoked or applied.
The Pay Commission considered the case of Hearing Therapists and it did not accept their claim for higher scale of pay.
The Pay Commis sion was in a better position to judge the volume of work, qualitative difference and reliability and responsibility required for the two posts.
The Pay Commission made recom mendations for pay scales on the basis of value judgment which has an intelligible criteria on the basis of educa tional qualifications.
The scant material placed before the Court by the petitioner, is not sufficient to hold that the recommendations of Pay Commission are without any rational basis or that it permits discrimination.
The petitioner 's contention that Speech Therapists have been granted higher scale of pay in other Institutions, namely, Rohtak Medical College, National Institute for Hearing Handicapped, Hyderabad, Safdarjang Hospital, and P.G.I. Chandigarh cannot be taken into consideration as the petitioner has failed to place any material showing the duties and functions performed by the Speech Therapist in the aforesaid Institutions or the qualifications prescribed for the same.
Merely because Speech Therapists performing similar duties and functions in other Institutions are paid higher pay scale is no good ground to accept the petition er 's claim for equal pay.
There may be difference in educa tional qualifications, quality and volume of work required to be performed by the Hearing Therapists in other Institu tions.
In the absence of any material placed before the Court it is not possible to record findings that the peti tioner is denied equality before law.
Moreover, if the employer is not the same the principle of 'Equal Pay for Equal Work ' would not be applicable.
We do not consider it necessary to discuss the matter further as the petitioner has not placed requisite material before the Court for the application of the principle of 'Equal Pay for Equal Work '.
In view of the above discussion we are of the opinion that the petitioner has failed to demonstrate that any discrimination has been practised against him in the matter relating to pay, therefore the question of application of the principle of 'Equal Pay for Equal Work ' does not arise and the petitioner is not entitled to any relief.
The peti tion fails and is accordingly dismissed but there will be no order as to costs.
N.V.K. Petition dis missed.

summary:
The petitioner was initially appointed in the year 1967 to the post of 'Teacher Co ordinator ' in the pay scale of Rs.210 425 in a Research Project funded by the Indian Coun cil of Medical Research.
As the unit where the petitioner was employed was taken over by the All India Institute of Medical Sciences on 1.7.1970 his services stood transferred to the said Institute and he continued to hold the post of Teacher Coordinator in the Institute.
Though the post was redesignated as 'Hearing Therapist ' with effect from 3.8.72, the same scale of pay, viz Rs.210 425 continued.
Pursuant to the recommendations of the Third Pay Commis sion the pay scale of 'Hearing Therapist was revised to Rs.425 700 with effect from 1.1.1973, and since then the petitioner continued to draw salary in the said scale.
The petitioner made several representations to the respondentauthorities to revise his pay scale and to place him in the pay scale prescribed for 'Speech Pathologist ' and 'Audiologist ' viz. Rs.650 1200.
Since no relief was granted the petitioner invoked the jurisdiction of this Court by means of a writ petition under Article 32.
The petitioner contended in his writ petition, that as 'Hearing Therapist ' he performs the same duties and func tions as 'Senior Speech Pathologist ', 'Senior Physio Thera pist ', 'Senior Audiologist ' and 958 'Speech Pathologist ' that the qualifications prescribed for the aforesaid posts are almost similar and they are working in the same institution under the same employer, yet the respondent authorities practised discrimination in refusing to accept his claim for equal pay.
It was further contended that the Third Pay Commission ignored the claim of 'Hearing Therapist ' although it had granted higher scale of pay for similar posts of 'Speech Therapist ', 'Senior Speech Patholo gist ', and 'Audiologist ', and that 'Speech Therapists ' performing similar types of duty as are performed by the petitioner had been granted higher pay scale in other organ isations like Safdarjung Hospital, PGI Chandigarh, and Medical College, Rohtak.
The respondents having thus failed to implement the Directive Principle of 'Equal pay for equal work ' as contained in article 39(d) of the Constitution in violation of articles 14 and 16, the petitioner claimed relief for the issuance of a writ of mandamus directing the re spondents for fixing his pay in the scale of Rs.410 950 with effect from 1.1.1970, and thereafter in the scale of Rs.650 1200 with effect from 1.1.1973.
The respondents contested the writ petition by asserting that the petitioner cannot compare himself with 'Senior Speech Therapist '. 'Senior Physio Therapist ', 'Senior Occu pational Therapist ', 'Audiologist ' or 'Senior Therapist ' as qualifications, duties and functions of these posts are altogether different and distinct from those prescribed for 'Hearing Therapist ', that there is no equality between the petitioner and the persons holding the aforesaid posts, that the Institute had created different posts with different pay scales having regard to the qualifications, duties, and responsibilities of the posts.
The petitioner 's plea of discrimination was emphatically denied.
Dismissing the writ petition, the Court, HELD: The principle of 'Equal pay for equal work ' cannot be invoked invariably in every kind of service, particular ly, in the area of professional services.
[967H] Dr. C. Girijambal vs Government of Andhra Pradesh, ; relied on.
In the instant case, even assuming that the petitioner performs similar duties and functions as those performed by an 'Audiologist ', it is not sufficient to uphold his claim for equal pay.
In judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifica tions, 959 qualitative difference and the measures of responsibility prescribed for the respective posts.
Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of 'Equal Pay for Equal Work ' would not apply.
[964H; 965A B] State of Mysore vs Narasing Rao, ; ; Union of India vs Dr. (Mrs.) S.B. Kohli, ; ; Jammu & Kashmir vs Triloki Nath Khose & Ors., ; ; Ganga Ram vs Union of India, ; ; Mohammad Shujat Ali of All India Customs & Central Excise Stenographers (Recog nised) & Ors.
vs Union of India & Ors.
, ; and State of U.P. & Ors.
vs Sh.
J.P. Chaurasia & Ors., ; referred to.
Merely because Speech Therapists performing similar duties and functions in other institutions are paid higher pay scale is no good ground to accept the petitioner 's claim for equal pay.
In the absence of any material placed before the Court it is not possible to record findings that the petitioner is denied equality before the law.
Moreover, if the employer is not the same the principle of 'Equal pay for equal work ' would not be applicable.
[969E F] The doctrine of 'Equal Pay for Equal Work ' is not an abstract one, it is open to the State to prescribe different scales of pay for different posts having regard to educa tional qualifications, duties and responsibilities of the post.
The principle of 'Equal Pay for Equal Work ' is ap plicable when employees holding the same rank perform simi lar functions and discharge similar duties and responsibili ties are treated differently.
The application of the doc trine would arise where employees are equal in every respect but they are denied equality in matters relating to the scale of pay.
The principle of 'Equal Pay for Equal Work ' has been enforced by this Court.
[962D F] Randhir Singh vs Union of India & Ors., ; ; Direndra Chemoli & Anr.
vs State of U.P., ; V.J. Thomas & Ors.
vs Union of India & Ors.
, [1985] (Supp.) SCC 7; P. Savita vs Union of India & Ors., [1985] (Supp.) SCR 101; Bhagwan Dass vs State of Haryana, [1987] 4 SCC 634 and Jai Pal & Ors.
vs State of Haryana & Ors.
, [1988] 3 SCC 354, referred to.


judgement:
ivil Appeal No. 2789 of 1980.
From the Judgment and Order dated 29.5.1980 of the Punjab and Haryana High Court in Civil Revision No. 2 16 of 1980.
R.F. Nariman and D.N. Misra for the Appellant.
989 Rakesh Sahney, K.M.M. Khan and Vineet Kumar for the Respondent.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal by special leave under Article 136 of the Constitution is against the judg ment and order dated 29.5.1980 in Civil Revision No. 216 of 1980 passed by the High Court of Punjab and Haryana at Chandigarh.
The respondent herein being the owner of the tenanted premises (i.e. two sheds) filed a petition for ejectment before the Rent Controller against the tenant, the appellant herein on the ground that the tenant had not paid the rent from 1.5.74.
The monthly rent for the premises was orginally Rs.950.
According to the landlord under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the 'Act ') the rent of the demised premises was liable to be increased from Rs.950 to Rs. 1142 per mensem.
The landlord gave notice to the tenant to pay the rent at the enhanced rate of Rs. 1142 per mensem with effect from 26th June 1974 but the tenant defaulted in making the payment of rent and as such he was liable to be ejected from the premises on the ground of nonpayment of rent.
The tenant resisted the application stating that the landlord was not entitled to claim enhanced rent at the rate mentioned in the ejectment application under the provisions of the Act and no legal notice was served on him claiming the arrears of rent and he had already paid the rent upto March 1975 by means of cheques and he had tendered the arrears of rent together with interest and cost as assessed by the Rent Controller on 5th December 1977 and hence the sole ground of his ejectment from the demised premises was no longer available to the landlord.
In the replication the landlord denied that the tenant had paid the rent to him for the period from May 1974 to 30th November 1977 @ Rs.1142 per mensem.
In the alternative, he claimed that the rent to the extent of Rs.36,100 was due to him from the tenant @ Rs.950 per mensem for the period 1st May 1974 to 30th June, 1977 and that the tenant having defaulted in making the payment was liable to be ejected.
It may be stated that the applica tion for eviction was filed on 7.6.77.
The Rent Controller held that the landlord was not entitled to recover the rent @ Rs. 1142 p.m. but only @ Rs.950 p.m. as agreed between the parties and he had failed to pay the rent from 1.4.75.
On the basis of the above finding the Rent Controller directed the eject 990 ment of the tenant from the premises by granting two months ' time.
This order of the Rent Controller, on appeal, was con firmed by the Appellate Authority.
On being aggrieved with the Order of the Appellate Authority, the tenant preferred a Civil Revision Petition before the High Court under Sub section (6) of Section 15 of the Act.
On behalf of the tenant, it was urged before the High Court on the strength of Clause 'C ' of Rule 4 and Clause (1) of Rule 5 of the Haryana Urban (Control of Rent and Eviction) Rules 1976 framed under Section 23 of the Act that since in the appli cation for ejectment no specific amount of arrears due was mentioned, the application was not maintainable.
The High Court rejected this plea observing thus: "Admittedly, no such objection as to the non compliance of the said rules was taken either in the written statement or before the Rent Controller, inasmuch as it was not raised even before the Appellate Authority.
Moreover, it has not been shown that any prejudice was caused to the tenant on account of this non compliance on the part of the landlord.
Under these circumstances, no such plea can be available to the tenant in this revision petition for the first time particularly when it does not affect the merits of the case nor has it caused any prejudice to him.
" Thereafter, coming to the question of arrears of rent, the High Court found thus: "Moreover, the tenant clearly stated on 5th December 1977 that according to him, the total amount, due from him at the rate of Rs.950 p.m. from 1st April 1975 to 31st May 1977 was Rs.24,700 out of which Rs.21,696 had already been paid by him to the landlord, which he subsequently failed to prove by leading evi dence.
Under these circumstances, since the tenant failed to prove the payment of the arrears of rent as claimed by him in his statement recorded on 5th December 1977 he was liable to ejectment on the ground of non payment of rent as provided under Section 13(2)(i) of the Act.
" On the above finding, the Revision Petition was dis missed.
Hence this present appeal.
We shall point out at this juncture that the amount of Rs.21,696 991 which the tenant claims to have paid includes a sum of Rs. 18,844.14 which was found by the Rent Controller and the Appellate Authority as arrears of rent.
Mr. R.F. Nariman, learned counsel appearing on behalf of the appellant/tenant assails the impugned judgment of the High Court on two legal grounds; firstly, that the High Court has ignored to note that the statutory obligation cast on the Rent Controller as per the proviso attached to Sec tion 13(2)(i) of the Act requiring him to calculate and determine the quantum of arrears of rent even at the first instance has not been complied with and secondly that the application for ejectment was not in accordance with the mandatory provisions of Rule 4(c), 5(1) and 6 of the Rules framed under the Act and as such the impugned judgment is liable to be set aside on both the grounds.
We shall now take the first ground of attack.
Before dealing with the point of law involved, it may be necessary to extract the relevant portion of Section 13(2)(i) of the Act with its first proviso with which we are concerned.
"13(2) A landlord who seeks to evict his tenant shall apply to the Controller, for direction in that behalf.
If the Controller, after giving the tenant a reasonable opportu nity of showing cause against the application, is satisfied (i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable.
Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and inter est, to be calculated by the Controller, at eight percenturn per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.
" The answer to the first legal question mainly turns on the 992 interpretation of the proviso to Section 13 which refers to the following essential conditions namely: 1.
There must be an application for ejectment before the Court; 2.
The tenant, within a period of fifteen days of the first hearing of the application after due service, pays or tenders: (a) the arrears of rent; and (b) the interest to be calculated by the Controller at eight per cent per annum on such arrears together with such costs of the application, if any as may be allowed by the Controller; If the above said two conditions are satisfied, then the tenant shall be deemed to have duly paid or tendered the rent within the time required by law.
The last paragraph of Section 13(2) enjoins that where the above second condition of the proviso is not fulfilled the Controller shall make an Order directing the tenant to put the landlord in possession of the building and where he is satisfied that the rent has been paid the application of the landlord must be rejected.
Therefore, the sole question which has to be determined in the case on hand is whether or not the deposit made by the appellant was legally valid.
On facts, the Rent Control ler, the Appellate Authority and the High Court found that the appellant/tenant has not deposited the actual rent due payable by him except a part of it namely Rs.2902.96 along with the interest of Rs.261.27 and the cost of Rs.35 totall ing to Rs.3199.23 which deposit was less by Rs.18844.14 even calculated at the rate of Rs.950 per mensem.
In fact, the learned counsel who appeared for the appellant/tenant before the Appellate Authority has conceded the arrears of rent which fact is found in paragraph 6 of the Order of the Appellate Authority reading thus: "The learned counsel for the appellant frankly conceded before me that he did not challenge the finding of the Court below that the re spondent was in arrears of rent in the amount of Rs. 18,844 on the date he tendered the arrears of rent together with interest and costs assessed by the Rent Controller.
" 993 An attempt on the part of the tenant that he had paid that amount has been totally rejected by all the Courts.
Only on the above finding, the Courts below held that the tenant had not deposited the full and valid rent actually due but only a small part of it and as such it is manifest that the second condition enjoined by the proviso was not fulfilled at all and on that ground alone it could be held that the deposit was not valid one.
The learned counsel, Mr. R.F. Nariman drew our attention to two judgments of this Court in Sheo Narain vs Sher Singh, ; and Sham Lal (dead) by Lrs.
vs Atme Nand Jain Sabha (Regd.), Dal Bazar, ; In our considered view both these decisions cannot be of any as sistance to the appellant in the present case because the points for determination that arose in those two cases were different.
Mr. R.F. Nariman then advanced an argument that a statu tory duty is cast under Section 13(2)(i) of the Act on the Rent Controller to calculate and determine the arrears of rent as well as the interest to be paid by the tenant within a period of 15 days of the first hearing of the application for ejectment after due service, but since the Controller has failed to discharge that obligation no eviction can be ordered particularly when there is a dispute with regard to the quantum of arrears of rent.
From the judgment on appeal, it seems that a contention substantially identical to the one presently made was advanced before the High Court which repelled the same holding thus: "Going through the whole scheme of the Act, there is no provision that the Rent Controller should decide at the first date of hearing the amount due as arrears of rent . . . . .
If this argument of the learned counsel for the peti tioner is accepted, in that situation the tenant will have another opportunity for making the payment of the arrears due from him, which, as stated earlier, is neither the scheme of the Act nor is in consonance with the language used in the proviso to Section 13(2)(i).
On the first date of hearing, it is the duty of the tenant to calculate the ar rears of rent, which according to him are due from him and which he intends to tender on the first date of hearing . . . . . .
Since payment of rent is obligatory on the tenant and that too within the time prescribed in Section 13(2)(i) of the Act, it is for him to calculate the rent which is in arrears and pay the same as provided by the statute.
" 994 After a careful scrutiny of the Section 13(2)(i) and the first proviso annexed thereto, we see no force in the sub missions of the learned counsel that there is any statutory duty cast on the Rent Controller even in the first instance to determine and calculate the arrears of rent and the interest but on the contrary the proviso requires the tenant to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service alongwith the interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application, if any, as may be al lowed by the Controller.
What the proviso requires is that the Controller has to calculate the interest at 8 per cent per annum on such arrears of rent and determine the costs of the application, if any.
If the argument of the learned counsel is to be accepted then in every case the Rent Con troller has to hold an enquiry at the first instance and determine the arrears of rent even on the first date of hearing which is in the nature of things not possible with out any evidence, nor is it contemplated under the scheme of the Act.
When there is a statutory obligation on the tenant either to pay or tender the arrears of rent within a period of 15 days of the first hearing of the application for ejectment after due notice it is for him to calculate the exact arrears of rent due and to pay or tender the same and if the tenant tails to do so he is deemed to have not paid or made the valid tender of the rent.
Hence we hold that this argument advanced on behalf of the appellant is miscon ceived and fallacious.
For the reasons aforementioned, we hold that there is no merit in the first contention.
We shall now examine the second legal contention with reference to Rules 4(c), 5(1) and 6 of the Rules under the Act which rules read as follows: 4.
Application for eviction.
Section 13 Application under section 13 of the Act, shall besides the particulars mentioned in Rules 5 and 6 contain the following particulars name ly: (emphasised) (a) xxxxxxxxxx (b) xxxxxxxxxx (c) The amount of arrears due and the period of default.
995 5(1) Applications Section 4 and 13(1) In addition to the particulars mentioned in rules 3, 4 and 6 as far as these may be applicable, every application made under this Act shall contain simple and concise narrative of the facts which the party by whom or on whose behalf the statement of pleading is made, believes to be material to the case and which he either admits or believes that he will be able to prove.
(emphasised) 6.
Particulars to be furnished to the Controller Section 21(1) Every landlord and every tenant of a building or rented land shall furnish to the Controller, or any person authorised by him in that behalf, the follow ing particulars namely: (emphasised) (a) name and number of the building or rented land, if any, or its description and bound aries sufficient to identify it; (b) street and municipal ward or division in which the building or rented land is situated; (c) name and address of the landlord, if the particu lars are furnished by the tenant and name of the tenant, if the particulars are furnished by the landlord; (d) whether the building is a residential, non residential or a scheduled building; and (e) nature of amenities provided by the land lord to the tenant Mr. R.F. Nariman laid stress on the word "shall" occur ring in the above rules particularly Rule 4(c) and contended that these rules are mandatory in character and so the non compliance would amount to violation of the imperative (i.e. mandatory) provisions of these rules.
According to him the respondent/landlord has not specified the 'amount of arrears due ' in strict substantial compliance of Rule 4(c) and as such the present application for ejectment has to be thrown.out.
The answer to the above contention depends upon whether these rules are mandatory or directory which ques tion has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute.
No doubt, if the statute is mandatory , 996 the things done not in the manner or form prescribed have no effect or validity, but if it is directory, the non compli ance may not lead to any serious and adverse consequence.
A valuable guide for ascertaining the intention of the Legis lature is found in Maxwell "The Interpretation of Statutes" (Twelfth Edition) Chapter 13 at page 3 14) under the caption "Intentions attributed to the legislature when it expresses none" reads thus: "Passing from the interpretation of the lan guage of statutes, it remains to consider what intentions are to be attributed to the legis lature on questions necessarily arising out of its enactments and on which it has remained silent. . . . . . .
It is impossible to lay down any general rule for determining whether a provision is imperative or directory." Lord Cambell in Liverpool Borough Bank vs Turner, ; at pp. 507,508 observed: "No universal rule can be laid down for the construction of statutes as to whether manda tory enactments shall be considered directory only or obligatory with an implied nullifica tion for disobedience.
It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.
" Lord Penzance in Howard vs Bodington, at p. 211 said: "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directo ry." In 'Craies on Statute Law ' (Sixth Edition) at page 63, the following quotation is found: 997 "When a statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its per formance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory" See Montreal Street Rly.
Co. vs Normandin, ; With reference to non compliance of the directory enact ment in 'Craies on Statute Law ' it is said at page 261: "But on the other hand, if a statute is merely directory, it is immaterial, so far as relates to the validity of the thing to be done, whether the provisions of the statute are accurately followed out or not.
" See also 'On the Construction of Statutes ' by Crawford.
In Woodward vs Sarsons, at page 746 it is explained as to what is called an absolute enactment or mandatory enactment as follows: "An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
" In Seth Bikhraj Jaipuria vs Union of India, [1962] 2 SCR p. 880 a question arose whether Section 175(3) of the Government of India Act, 1935 which requires that contracts on behalf of the Government of India shall be executed in the form prescribed is mandatory or directory.
The Supreme Court at page 893 expressed its view as follows: "Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legisla ture as disclosed by the object, purpose and scope of the statute.
If the statute is manda tory, the thing done not in the manner or form prescribed can have no effect or validity; if it is directory, penalty may be incurred for non compliance, but the act or thing done is regarded as good." 998 In Raza Buland Sugar Co. Ltd. vs Municipal Board, Ram pur; , , certain questions arose for consider ation whether the whole of Section 131(3) of U.P. Municipal ities Act was mandatory or the part of it requiring publica tion in the manner laid down in Section 94(3) of the said Act i.e. in a Hindi Newspaper was merely directory; Wancboo, J as he then was speaking for the majority said: "The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses the word "shall" as in the present case is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor.
The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclu sion whether a particular provision is manda tory or directory.
" See also K. Kamaraja Nadar vs Kunju Thevar and Others, and Ch.
Subbarao vs Member, Election Tibunal, Hyderabad, 13.
It is apposite to refer to the observation of this Court in Hari Vishnu Kamath vs Syed Ahmad Ishaque, ; dealing with this problem: "It is well established that an enactment in form mandatory might in substance be directory and that the use of the word "shall" does not conclude the matter.
" Reference may be had to (1) State of U.P. & Ors.
vs Babu Ram Upadhya, ; and (2) Ajit Singh vs State of Punjab, ; The word "shall" in its ordinary import is obligatory.
Nevertheless, the word "shall" need not be given that conno tation in each and 999 every case and the provisions can be interpreted as directo ry instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute.
While interpreting the concerned provisions, regard must be had to the context, subject matter and object of the statute in question.
On a close scrutiny of the relevant rules referred supra in the light of the above principles of statutory interpre tation, we are of the view that the non compliance of rule 4(c) i.e. the non mentioning of the quantum of arrears of rent, does involve no invalidating consequence and also does not visit any penalty.
From the above discussion we hold that the rules 4(c), 5(1) and 6 are not mandatory but only directory.
In that view, we see no force in the contention of the learned counsel that the non mentioning of the amount of arrears of rent due in the application for ejectment has adversely affected the proceedings of this case and as such the appli cation for ejectment is liable to be dismissed on that score.
Accordingly, we reject this contention also.
In the present case, the tenant himself was well aware of the amount of arrears of rent due about which we have already mentioned in the earlier portion of this judgment.
The present objection as to the non compliance of the rules admittedly was not taken either in the written statement or before the Rent Controller or before the Appellate Authori ty.
For the first time such a contention was raised before the High Court which has tightly rejected the same, observ ing thus: "It has not been shown that any preju dice was caused to the tenant on account of this non compliance on the part of the land lord.
" We are in full agreement with the above view of the High Court as no prejudice is writ large in the present case because proof of prejudice is also one of the necessary criteria besides non compliance of the provision to invali date the Act complained of as held by Chinnappa Reddy, J in Dalchand vs Municipal Corporation, Bhopal and Another, In the result, both the contentions raised by the appellant fail.
For the reasons hereinbefore mentioned, the appeal is dismissed with costs.
Y.L. Appeal dis missed.

dataset_name: IN-Abs

summary:
This is a tenant 's appeal filed after obtaining Special Leave from the Court.
The Respondent landlord of tenanted premises (i.e. two sheds) filed a petition for ejectment of the appellant from the premises in question before the Rent Controller.
According to the Respondent landlord the monthly rent payable by the appellant was Rs.950 p.m. which was liable to be enhanced under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 from Rs.950 to Rs.1142 p.m.
Accordingly, the respondent caused a notice to be given to the appellant claiming rent @ Rs. 1142 w.e.f. 26.6.1974 till June 1977 and since the appellant defaulted in making payment of the rent, he was liable to be ejected from the demised premises.
The tenant denied that the rent was liable to be enhanced as claimed by the landlord.
He further asserted that he had already paid rent upto March 1975 by means of cheques and that he had tendered the ar rears of rent together with interest and costs as assessed by the Rent Controller on 5.12.1977.
On this reasoning he urged that he was not liable to be evicted on the ground taken in the Petition.
The landlord in the replication denied the receipt of rent for the period from May 1974 to November, 1977 @ Rs.1142 p.m. Alternatively he claimed that the rent to the extent of Rs.36,100 was due to him from the appellant @ Rs.950 p.m. from 1st May, 1974 to June 30, 1977.
The Rent Controller held that the landlord respondent was not entitled to recover the rent @ Rs.1142 p.m. but only Rs.950 p.m. as agreed between the parties and the appellant has failed to pay the rent from 1.4.1975.
Accordingly, the Rent Controller directed the ejectment of the appellant from the premises by granting him two months time.
987 The appellate authority having affirmed the order of the Rent Controller, the appellant filed a Civil Revision before the High Court under Sub section
(6) of Sec. 15 of the Act.
Before the High Court it was urged by the appellant that since in the application for ejectment no specific amount of arrears of rent due was mentioned as contemplated by CI.
(c) of Rule 4 and Clause (1) of Rule 5 of the Haryana Urban (Control of Rent and Eviction) Rules he could not be evict ed.
Finding no substance in the said contention, the High Court rejected the Civil Revision.
Hence this appeal.
The appellant raised two contention before this Court viz., that the High Court has ignored to note the statutory obligation cast on the Rent Controller as per the proviso attached to Sec.
13(2)(1) of the Act requiring him to calcu late and determine the quantum of arrears of rent; even at the first instance has not been complied with and (ii) that the application for ejectment was not in accordance with the mandatory provisions of Rule 4(c) 5(1) and 6 of the Rules framed under the Act.
Dismissing the appeal, this Court, HELD: The proviso to Sec. 13(2)(i) requires the tenant to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service alongwith the interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application, if any, as may be al lowed by the Controller.
[994B] When there is a statutory obligation on the tenant either to pay or tender the arrears of rent within a period of 15 days of the first hearing of the application for ejectment after due notice it is for him to calculate the exact arrears of rent due and to pay or tender the same and if the tenant fails to do so he is deemed to have not paid or made the valid tender of the rent.
[994D] The non compliance of Rule 4(c) i.e. the non mentioning of the quantum of arrears of rent, does involve no invali dating consequence and also does not visit any penalty.
[999B C] Rules 4(c), 5(1) and 6 are not mandatory but only directory.
[999C] If the statute is mandatory, the things done not in the manner or form prescribed have no effect or validity.
But if it is directory, the non compliance may not lead to any serious and adverse consequence.
[995H; 996A] 988 The word "shall" in its ordinary import is obligatory.
Nevertheless the word "Shall" need not be given that conno tation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute.
[998H; 999A B] No prejudice is writ large in the present case because proof of prejudice is also one of the necessary criteria besides non compliance of the provision to invalidate the Act.
[999G] Sheo Narain vs Sher Singh, ; , Not applicable.
Sham Lal (dead) by Irs.
vs Atme Nand Jain Sabha (Regd.) Dal Bazar, ; , Not applicable.
Montreal St. Rly.
Co. vs Normandin, ; , re ferred to.
Seth BikhrajJaipuria vs Union of India, ; , referred to.
Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur, ; , referred to.
K. Kamraj Nadar vs Kunju Thevar and Others, , referred to.
Subbarao vs Member, Election Tribunal, Hyderabad, ; , referred to.
State of U.P. & Others vs Babu Ram Upadhya, ; , referred to.
Ajit Singh vs State of Punjab, ; , referred to.


judgement:
rit Petition (Civil) NO. 194 of 1988.
etc etc.
764 (Under Article 32 of the Constitution of India).
D.D. Thakur, T.S. Krishnamurthi Iyer, Rajesh Mitra, Ms. Santosh Kalra, H.K. Puri, R.L. Roshan, S.S. Sabharwal, S.K. Sabharwal, and M.K.D. Namboodiri for the Petitioners.
P.P. Rao, S.N. Kacker, G. Rath, Mrs. A. Mathur, A. Mariarputham, C.M. Nayyar, D.S. Narula, Kailash Vasudev, Mrs. Uma Jain and P.K. Mehta for the Respondents.
The following Order of the Court was delivered: O R D E R The writ application under Article 32 and the transferred writ petitions from the Delhi High Court relate to selection of medical graduates for undertaking post graduate study for the year 1988 under the Delhi University.
In Dr. Dinesh Kumar vs Motilal Nehru College, Allahabad & Ors., this Court emphasised the desirability of post graduate education in the Medical Faculty as far as possible to have uniformity throughout the country.
It, therefore, commended to the educational institutions which followed the system of one year house job followed by two years ' post graduate course to switch over to the pattern of a three year post graduate course with house job in the first year.
On September 25, 1987, in the very same matter, when the Court made an order reported in ; , it was pointed out that in some States the post graduate course is for a term of two years with one year housemanship while in the other States it is a full term of three years.
This Court, therefore, directed with a view to bringing about uniformity on the basis of the principle accepted in the earlier decision that for admission beginning from 1993, there would be only one pattern, namely, a three year integrated course without any separate housemanship.
The University of Delhi decided to adopt the three year course for the post graduate degree and a two year course for the diploma commencing from the academic Session of 1988.
With a view to mitigating hardship to candidates/students who had already completed the house job and had become entitled to undergo the postgraduate course in two years, as a transitory provision, the University decided to continue the practice prevailing prior to 1988 for a year.
The University evolved a scheme where under the number of seats for the post graduate course and diploma course available in the previous year for a student who had completed one year 's housemanship were left untouched.
The number of such seats are 198 for the degree course 765 and 111 for the diploma course.
Out of these 25% being placed at the disposal of the Government of India to be filled up on all India selection basis, the exact number available to be filled up by the University worked out to 149 and 84 respectively.
As a transitional provision intended for the 1988 Session only the University agreed to fix 75% quota (representing 139 seats in the three year degree course and 66 seats in the two year diploma course).
The following was specified a part of the Scheme: "Important Note Candidates who have done house job/junior Residency for a period of one year are not eligible for admission to 3 years Post Graduate Degree and 2 years PostGraduate Diploma Course.
" The prospectus, however, prescribed one common selection test.
A set of writ petitions were filed before the Delhi High Court challenging the scheme of the University mainly on the basis that when there was one selection test, merit should prevail and classification in the manner indicated by the scheme was bad.
Reliance was placed before the High Court on observations of this Court that for post graduate degree the test of excellence should prevail and the level of high proficiency should be maintained.
The High Court made an interim order requiring the University to have the selection completed on the basis of merit adjudged in the common selection test.
This is a dispute essentially between the University and the freshers who have not done housemanship on one side and the seniors who have already completed housemanship for one year on the other.
There can be no dispute that the seniors and the freshers belong to two separate categories and cannot be said to be equals.
If the University had not prescribed a common selection test for these two categories, the question of test of comparative merit would not have arisen.
If that had not been done perhaps the High Court would not have made its direction and the difficulty which has arisen would not have cropped up.
The classification of freshers and those who have completed a year 's housemanship, though a perceptible one, loses its importance in view of the traditional situation that in the system prevailing prior to 766 1987, both the groups were treated as qualified for appearing at the selection test for post graduate study.
We are told by learned members at the Bar that after transitory Note extracted above disappears in the coming year, the old practice shall again revive.
This is an unfortunate situation.
There being no limit to participation in the selection test for post graduate study candidates who become unsuccessful year after year, in the absence of any limit, keep on taking chances.
This certainly is not a desirable feature and should be looked into by the appropriate authorities quickly.
If the merit list of the selection examination is followed, more of seniors are entitled to admission and the scheme of reservation would not work.
As we have already pointed out in the name of what counsel calls convenience (and how inconvenient it was is not known), the Delhi University made an initial mistake of having a common selection test for two categories of candidates.
While we reiterate the view expressed by this Court on more than one occasion that selection in the higher courses should be on the basis of merit, in the peculiar facts and circumstances arising in this case purely confined to a transitory measure, the situation has to be handled not by first principles but by a somewhat informed pragmatic adhocism.
This has to be so because the situation would not reoccur.
Again the initial mistake of the Delhi University had brought some amount of confusion and it has mounted up following the intervention by the High Court.
The time available is too short as under the Scheme intended to apply to the whole country the course has to begin on the 2nd of May, 1988.
In this background we are of the view that the impasse created on account of the rival claims advanced by the freshers and the seniors has to have a rough and ready solution yet not arbitrary and as acceptable and satisfying as possible.
We find that the two year degree course speciality wise has 149 seats while the three year degree course has 139 seats.
For convenience we extract the particulars made available at page 4 of the Bulletine of Information.
It may be pointed out that there are 1003 candidates as against total 270 vacancies (degree and diploma courses together) for the seniors; and there are 331 candidates as against 205 vacancies for the two courses for the freshers.
With a view to providing some more seats for seniors we suggested to Mr. Rao appearing for the University that the number of seats may be increased and he has on instructions agreed, provided the Union of India provides funds and the Medical Council agrees to accommodate.
There are 21 specialities as indicated above.
We direct that the University shall create one seat in every speciality and thus 21 additional seats will 767 be available over and above the 149 seats fixed by the University representing the 75% quota.
To this enhanced number of seats the 25% reservation of All India Selection shall not apply.
From the reserved seats made for the freshers, 21 seats being one from every speciality shall be taken away and made available to the seniors.
Thus 42 seats in all will be available for the seniors in the Post Graduate course to be filled up on the basis of inter se merit keeping the senior group apart.
The creation of the 21 seats will involve additional funds to be provided by the Union of India.
It will also require approval of the Medical Council of India and there will perhaps also be necessity for permitting the variation of guide student ratio.
Since it is for one year and there would be no scope for recurrence and this has arisen in peculiar circumstances explained above, we direct the Government of India to take our order made without hearing it with a sense of understanding and make the necessary provisions.
We also suggest to the Indian Medical Council to provide the necessary accommodation by relaxing the requirements.
These may be done quickly so that the time schedule may not be affected.
N.P.V. Petitions disposed of.

summary:
Pursuant to the directions of the Supreme Court in Dr. Dinesh Kumar & Ors vs Motilal Nehru Medical College Allahabad, & Ors. ; regarding uniformity in post graduate medical education, respondent No. 1 the University of Delhi, decided to adopt the three years course for the post graduate degree and a two years course for the diploma commencing from the academic session of 1988.
However, with a view to mitigating hardship to candidates/students who had already completed the house job and had become entitled to undergo the post graduate course in two years, as a transitory provision, the respondent University decided to continue the practice prevailing prior to 1988 for a year.
It evolved a scheme whereunder, the number of seats for the post graduate course and diploma course available in the previous year for a student who had completed one year 's housemanship were left untouched.
As a transitional provision, the University agreed to fix 75% quota, for the 1988 session only.
As per a Note in the scheme, candidates who had done house job/Junior Residency for period of one year were not eligible for admission to 3 years post graduate degree and 2 years post graduate diploma course.
The prospectus, however, prescribed one common selection test for both the categories.
A set of writ petitions were filed before the High Court challenging the scheme of the University mainly on the basis that when there was one selection test, merit should prevail and classification in the manner indicated by the scheme was bad.
The High Court made an interim 763 order requiring the University to have the selection completed on the basis of merit adjudged in the common selection test.
Disposing of the Writ Petitions and some cases transferred from the High Court, ^ HELD: The seniors who have already done one year 's housemanship and freshers belong to two categories and cannot be said to be equal.
The question of test of comparative merit would not have arisen if the University had not prescribed a common selection test for these two categories.
If the merit list of the selection test is followed, more seniors are entitled to admission and the scheme of reservation would not work.
[765F G] While selection in the higher course should be on the basis of merit in the peculiar facts and circumstances of this case, purely confined to a transitory measure, the situation has to be handled not by first principles but by a somewhat informed pragmatic adhocism especially because the situation would not reoccur.
[766D] The impasse created on account of rival claims by freshers and seniors has to have a rough and ready solution yet not arbitrary and as acceptable and satisfying as possible.
[766F] With a view to providing some more seats for seniors, the respondent University should create one seat in every speciality.
Thus, 21 additional seats will be available over and above the seats fixed by the University representing 75%.
From the reserved seats made for the freshers, 21 seats, being one from every speciality, should be taken away and made available to the seniors.
Thus, 42 seats in all will be available for the seniors in the Post Graduate course to be filled up on the basis of inter se merit, keeping the senior group apart.
[766G H; 767A B] The Central Government should make the necessary provisions for funds.
The Indian Medical Council may provide the necessary accommodation by relaxing the requirements.
[767D] Dr. Dinesh Kumar vs Motilal Nehru College, Allahabad & Ors., ; , referred to.