Nandesh S. Deshpande, J.

1. Heard.

2. Rule. Rule is made returnable forthwith. Heard finally with the consent of parties.

3. All these petitions raised identical challenge and therefore are being disposed of by this common judgment. The petitions seek a declaration that Clause 3 of the Government Circular dated 13.10.2016, issued by the respondent No.1, i.e., Department of School Education and Sports is discriminatory and violative of Article 14 of the Constitution of India. They further pray for a declaration that the petitioners are entitled for the benefit of graduate teachers pay scale as per the said circular and seeks a direction for granting the said benefit.

4. The facts which are identical in all these petitions are as under:

The petitioners are working as subject teachers in various schools of the respective Zilla Parishads. All the petitioners are having qualification of graduate D.Ed. or B.Ed. and are working on the post of subject teachers in their respective schools. They were given appointment by the respective Zilla Parishads on the post of subject teachers of various subjects for teaching Class 6 to 8 under the Right to Education Act and they all are appointed after the year 2016.

5. It is further the narration in the petition that the Union of India enacted a statute, namely, Right of Children to Free and Compulsory Education Act 2009 (RTE Act) which came into force with the effect from 01.04.2010. By virtue of said Act certain new qualifications for appointment of primary teachers have been declared for Class 1 to 5 and Class 6 to 8. Thereafter, in accordance with powers conferred by Section 23(1) of the RTE Act, the National Council for Teachers Education (NCTE) issued a notification which was published on 23.08.2010, thereby prescribing the minimum qualifications for Classes (i) to (v) and (vi) to (viii).

6. In pursuance to the RTE Act, the State of Maharashtra issued a Government Resolution on 13.12.2023, thereby declaring a policy regarding the staffing pattern of the teachers on the basis of strength of students.

7. As per the said policy, for Class 6 to 8 there has to be at least one teacher per class so that there shall be one teacher at least for Science, Mathematics, Social Studies and languages for every 35 students. Furthermore, vide Government Circular on 13.10.2016, the State Government declared that subject teachers would be entitled for graduate teacher pay scale, who were teaching Class 6 to 8. In the said circular, it is specifically stated that in Class 6 to 8 three teachers for the subject of Science, Mathematics, Social Science and languages are required to be appointed. By virtue of Clause 3 of the said circular, (which is the contentious clause), it is provided that out of the subject teachers who are teaching Class 6 to 8 only 1/3rd teachers as per their seniority would be entitled for the graduate teacher pay scale. It further provides that when the number of subject teacher is more than three then in the said subject as per seniority pay scale will be given equally. The said circular further provides that since there is a shortfall of science graduate teachers, the teachers who have passed HSSC with science subject will be given appointment on the Science subject teacher post and they will have to acquire qualification of a science graduate. But they will not be entitled for graduate teacher scale until they acquire such a qualification.

8. Thereafter the State Government issued another circular on 24.01.2017, which contains guidelines regarding preparation of seniority list of the subject teacher in view of judgment passed by this Court in Writ Petition No. 22801/1997 and other connected matters. Furthermore, vide circular dated 14.11.2017, it was clarified by the State Government that the seniority list of graduate teachers has to be taken into consideration for granting the pay scale of graduate teacher and the general seniority list has to be taken into consideration for the purpose of promotion. It also provides that the degree of B.A., B.com, B.Sc., is an additional qualification than the basic qualification of primary teacher. Once the teacher acquires such qualification then he will be included in list of graduate teachers.

9. It is further stated in the petition that the petitioners were earlier appointed as primary teachers having qualification of HSSC, D.Ed., but some of the petitioners were having a qualification of graduate and some of them acquired the said qualification after their appointments on the post of subject teachers. It is further stated that in the subject of Social Science and language the graduate qualified teachers were available but in the subject of Science there was a shortage of Science graduate teachers. Thus, for the said subjects of Science and Mathematics the subject teachers having the qualification of Science graduation and D.Ed. or B.Ed. are entitled for appointment but sufficient Science graduate teachers were not available. Therefore, in view of the Government Circular dated 13.10.2016, the teachers who passed HSSC in Science faculty were given appointment on the post of Science teacher subject to they acquiring the Science graduation qualification within 5 years; which they have accordingly done.

10. In the backdrop of these facts, it is stated in the petition that all the petitioners are working either on the post of language subject teacher, Social Science or Science subject teacher and are having a qualification of graduate with D.Ed or B.Ed. or M.A. It is further stated that in view of Clause 3 of the circular dated 13.10.2016, only 1/3rd teachers become entitled for grant of graduate teacher pay scale. The petitioners are teachers who are not in the said 1/3rd teachers and are thus deprived of the benefit of graduate pay scale.

11. In view of above, the Organization of teachers of which the petitioners are also members, submitted a representation on 26.12.2022, to the Chief Executive Officers and requested for applying the graduate teacher pay scale to all the subject teachers. It was pointed out in the said representation that the 1/3rd teachers who are granted benefits of graduate pay scale and the petitioners are performing same work and therefore they are also entitled for said pay scale. Therefore the present petition is filed seeking declaration about Clause 3 of the Government Resolution dated 13.10.2016 as stated supra.

12. We have heard Shri P.S. Kshirsagar and Shri K.S. Narwade, learned Counsel for the petitioners, Ms. H.N. Jaipurkar, learned Assistant Government Pleader for respondent/State, Shri N.S. Jadhao, learned Counsel for respondent Nos. 3 and 4 in Writ Petition Nos. 1506/2023, 627/2023 and 7966/2022 and Ms Shilpa Giratkar, learned Counsel for respondent Nos. 5 and 6 in WP No. 5566/2022.

13. Learned Counsel for the petitioners submits that the Clause 3 of the impugned circular dated 13.10.2016, excluding the other teachers than the 1/3rd teachers, is without any reasonable basis or criteria. He submits that the parent statute under which the circular is issued, i.e., the RTE Act, does not provide for any such ratio of 1:3. However, the circular issues an artificial criteria of 1:3 without there being any provision in the parent statute and therefore the circular runs beyond statutory provision. He further submits that there is no rationale to exclude the remaining subject teachers who are doing the same job with the same qualification and are similarly situated. It is their further submission that the NCTE, which is an expert body has declared the minimum qualification of the primary teachers and accordingly a graduate with D.Ed and B.Ed. were appointed on the post Science language and Social Science. It is therefore clear that all the subject teachers are having the similar qualification and similar nature of work of teaching the Class 6 to 8 for the respective subjects.

14. He further submits that equal pay for equal work is a Constitutional goal as reflected in Article 39 (d) of the Constitution and therefore the action of the respondents cannot withstand the said principle also. It is therefore his submission that the said Clause 3 is unsustainable in law.

15. Per contra, the learned Counsel for the respondents opposed the contentions made by the learned Counsel for the petitioners. They submit that the action is a policy decision and therefore cannot be interfered with. They submit that it is the exclusive domain of the State Government concerned to make out a differentiation and the same cannot be said to be arbitrary and therefore does not violate Article 14 of the Constitution of India. They further Submit that the action is perfectly legal and valid.

16. We have considered the contentions canvassed by the learned Counsel for the petitioners and with their assistance have gone through the record of the matter. As can be seen from the Government Resolution dated 13.10.2016, and more particularly Clause 3 thereof, it contemplates that only 1/3rd teachers out of the teachers teaching Class 6 to 8 would be entitled for graduate pay scale. It also provides for a modality if the number of teachers teaching the said classes is more than three. No reason whatsoever is coming forward nor can be seen from the Government Resolution dated 13.10.2016 for exclusion of the teachers like petitioners. As can be seen from the Preamble of the said Government Resolution, the same is issued for granting benefit of graduate pay scale to teachers teaching Class 6 to 8. It also provides that the subjects of Mathematics and English are supposed to be the difficult subjects and therefore for shortage of said teachers, it was found and observed that the teachers who were not graduate were appointed to teach such subjects to Class 6 and 8. However, while doing so, it was ignored that in which faculty the said person is graduate. It was in these circumstances that persons who have graduated with History, Geography or language were made to teach Mathematics and Science. It was therefore found that the merit of the students was suffering due to this fact. Thus, there is no reason coming forward for granting benefit to only 1/3rd teachers

17. We have gone through the circular impugned, as also other circulars referred to us by supra. As has been rightly submitted by the learned Counsel for the petitioners that the parent statute i.e. the RTE does not contemplate any such discrimination or muchless a ratio of 1:3 which has been sought to be created by the Clause 3 of the Government Resolution. As can be seen from the record and which is undisputed by the parties, that the nature of work/duty which is being performed by the said persons who have been granted graduate pay scale and the present persons like petitioners who have been deprived of the benefit thereof is one and the same. There is no rationale for exclusion of other teachers like petitioners who are performing the same nature of duties.

18. The Counsel for petitioners has rightly relied upon judgment of this Court in 2010(1) All MR 170 (Sahebrao Karbhari Gunjal and others Vs. State of Maharashtra and others) in which this Court in paragraph No. 13 recorded as under.

                    “13. "Equality" has been guaranteed under Article 14 of the Constitution of India. Equals have to be treated equally and un-equals ought not to be treated equally. However, reasonable classification is permissible under Article 14 of the Constitution. The classification must be founded on the basis of an intelligible differentia, which distinguishes those that are grouped together from others and differentia must have a rational relation to the object sought to be achieved.”

Furthermore in Randhir Singh Vs. Union of India and others (1982) 1 SCC 618 in paragraph No. 8 the Hon’ble Apex Court has recorded as under :

                    “8. It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims "equal pay for equal work for both men and women" as a Directive Principle of State Policy. ‘Equal pay for equal work for both men and women’ means equal pay for equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take-over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean some-thing. Even if it does not mean 'to each according to his need', it must at least mean 'equal pay for equal work'. "The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western Labour Codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance" (vide International Labour Law by Istvan Szaszy, p. 265). The Preamble to the Constitution of the Inter-national Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle 'equal pay for equal work' is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.”

19. This in our view, is a hostile discrimination without any reasonable nexus to the object sought to be achieved that is maintaining the merit and academic standard of the students. We are therefore of the considered opinion that the Clause 3 of the said resolution dated 13.10.2016 is unconstitutional and ultra-vires the parent statute i.e. RTE Act.

20. We therefore pass the following order :

                    ORDER

                    i) We declare that Clause 3 of the Government Resolution dated 13.10.2016 as discriminatory and violative of Article 14 of the Constitution of India as far as the petitioners are concerned.

                    ii) We further direct the respondents Zilla Parishads to grant the benefit of subject teacher pay scale to those petitioners who are already working as a subject teacher of Classes 6 to 8 from the date of appointment on the post of subject teacher.

                    iii) We also direct the respondents Zilla Parishads that the petitioners who have acquired the said requisite qualification during their service would be entitled to subject teacher pay scale from the date of acquiring such qualification.

                    iv) We also direct the respondents Zilla Parishads to pay arrears, if any, to the petitioners from the date of appointment or date of acquiring qualification as the case may be, within eight weeks from the date of this order.

21. With these directions the writ petition is allowed and disposed of. Rule is made absolute in the above terms.