Madras High Court
R.Augustine Xavier Arockiasamy vs The Government Of Tamil Nadu on 25 January, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2010
CORAM:
THE HONBLE MR.JUSTICE K.CHANDRU
W.P.No.23428 to 23457 and 23544 of 2009
and M.P.Nos.1 of 2009
W.P.Nos.23428 to 23457 of 2009:
R.Augustine Xavier Arockiasamy .... Petitioner
in W.P.No.23428 of 2009
S.Selvaraj .... Petitioner
in W.P.No.23429 of 2009
K.Govindasamy .... Petitioner
in W.P.No.23430 of 2009
C.Sadaiyan .... Petitioner
in W.P.No.23431 of 2009
M.Murugan .... Petitioner
in W.P.No.23432 of 2009
E.Kesavalu .... Petitioner
in W.P.No.23433 of 2009
V.Rajaraman .... Petitioner
in W.P.No.23434 of 2009
R.Janardhanam ... Petitioner in
W.P.No.23435 of 2009
J.Abul Khader ... Petitioner in
W.P.No.23436 of 2009
S.Murugan ... Petitioner in
W.P.No.23437 of 2009
A.Sowcar Syedpeer ... Petitioner in
W.P.No.23438 of 2009
R.Dhakshinamoorthy ... Petitioner in
W.P.No.23439 of 2009
A.V.Bharathidhasan ... Petitioner in
W.P.No.23440 of 2009
G.Pothiappan ... Petitioner in
W.P.No.23441 of 2009
R.Periyasamy ... Petitioner in
W.P.No.23442 of 2009
A.L.Basheer Ahameed ... Petitioner in
W.P.No.23443 of 2009
O.Basuvaraj ... Petitioner in
W.P.No.23444 of 2009
M.Deenadayalan ... Petitioner in
W.P.No.23445 of 2009
C.V.Ramesh ... Petitioner in
W.P.No.23446 of 2009
M.Syed Abuthahir ... Petitioner in
W.P.No.23447 of 2009
N.M.B.Shyam Sunder Babu ... Petitioner in
W.P.No.23448 of 2009
P.Balasubramanian ... Petitioner in
W.P.No.23449 of 2009
A.Mahalingam ... Petitioner in
W.P.No.23450 of 2009
S.S.Ganesan ... Petitioner in
W.P.No.23451 of 2009
V.Subramanian ... Petitioner in
W.P.No.23452 of 2009
S.Gopu ... Petitioner in
W.P.No.23453 of 2009
A.Yogaanadhan ... Petitioner in
W.P.No.23454 of 2009
G.Pandian ... Petitioner in
W.P.No.23455 of 2009
M.Anantharaman ... Petitioner in
W.P.No.23456 of 2009
P.Kathirkamam ... Petitioner in
W.P.No.23457 of 2009
Vs.
1. The Government of Tamil Nadu
represented by its Secretary
Industries Department
Fort St.George
Chennai 600 009
2. The Commissioner of Sugar
696, Anna Salai
Nandanam
Chennai 600 035. ... Respondents 1 and 2
in W.P.Nos.23428 to
23457 of 2009
3. The Special Officer
National Co-operative Sugar Mills Limited
Alanganallur
Madurai District 625 502. .... Respondent No.3 in
W.P.Nos.23428,
23432, 23447 and 23448 of 2009
3. The Administrator
Chengalrayan Co-operative Sugar Mills
Limited, Periyasevalai 605 702 .. Respondent No.3 W.P.Nos.23429
of 2009.
3. The Special Officer
Kallakurichi I Co-operative Sugar Mills Limited
Moongilthuraipattu
Villupuram District. .... Respondent No.3 in
W.P.Nos.23430 and
23453 of 2009
3. The Special Officer
Vellore Co-operative Sugar Mills Limited
Anmundi
Vellore District. .... Respondent No.3 in
W.P.Nos.23436 and 23444 of 2009
3. The Administrator
Kallakurichi II Co.operative Sugar Mills
Limited, Kachirayapalayam,
Villupuram District. .. Respondent No.3 in
W.P.Nos.23431,23434,
23442,23445, 23446,
23451,23455 and 23457 of 2009 and
Respondent No.4 in
W.P.No.23429 and
23456 of 2009
3. The Administrator
Cheyyar Co.operative Sugar Mills
Limited, Thenthandalam Annakkavoor
Tiruvannamalai District- 604 401. .. Respondent No.3 in
W.P.Nos.23433& 23441
23452 of 2009 and
Respondent No.4 in
W.P.No.23449 of 2009
3. Special Officer
Dharmapuri District Co-operative
Sugar Mills Limited
Palacode
Dharmapuri District. ... Respondent No.3 in
W.P.No.23438, 23443 of 2009
3. Special Officer
Tirupattur Co-operative
Sugar Mills Limited
Kethandapatti
Vellore District. ... Respondent No.3 in
W.P.No.23454of 2009
3. The Administrator
Tiruttani Co-operative Sugar Mills Limited
Thiruvalengadu
Tiruvallore District. ... Respondent No.3 in
W.P.No.23439 of 2009
3. The Administrator
M.R.Krishnamoorthy Co-operative
Sugar Mills Limited
Sethiathope
Cuddalore District 608 702. ... Respondent No.3 in
W.P.No.23440, 23449 23456 of 2009
3. The Administrator
Subramania Siva Co-operative
Sugar Mills Limited
Gopalapuram
Dharmapuri District. ... Respondent No.3 in
W.P.No.23450 of 2009
3. The Chairman & Managing Director
Perambalur Sugar Mills Limited
696, Anna Salai
Nandanam 600 035.
4. The Chief Executive
Perambalur Sugar Mills
Eraiyur Post
Perambalur 621 133. ... Respondents No.3 and
4 in W.P.No.23435 of
2009
3. The Chairman & Managing Director
Tamil Nadu Sugar Corporation Limited
696, Anna Salai
Nandanam 600 035.
4. The Chief Executive
Arignar Anna Sugar Mills
Kurungulam Post
Thanjavur 613 303. ... Respondents No.3 and
4 in W.P.No.23437 of
2009
W.P.No.23544 of 2009:
J.Samuel Sugunaraj Anbunathan
M.R.Krishnamurthy Co.operative
Sugar Mills Limited
Sethiathope- 608 702. ... Petitioner
Vs.
1.The State of Tamil Nadu
rep.by its Secretary
Industries Department
Fort St.George,
Chennai
2.The Commissioner
Department of Sugar
696, Anna Salai
Nandanam, Chennai 35.
3.The Administrator
MRK Co.operative Sugar Mills Limited
Sethiathope 608 702
Chidambaram Taluk
Cuddalore District. .... Respondents.
Prayer: Petitions in W.P.No.23428 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (2) dated 17.2.2009 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade.
Petition in W.P.No.23455 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (3) dated 17.2.2009 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade.
Petitions in W.P.No.23429 and 23430 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (2) dated 6.11.2008 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade.
Petition in W.P.No.23442 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (2) dated 6.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade.
Petitions in W.P.No.23446, 23450 and 23452 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 6.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade.
Petitions in W.P.No.23431, 23432, 23436, 23441,23444, 23447, 23448, 23454 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 8.12.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory "C" grade.
Petitions in W.P.No.23433 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 19.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "B" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "B"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory"B" grade.
Petitions in W.P.No.23434 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 17.2.2009 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "B" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "B"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory"B" grade.
Petition in W.P.No.23435 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008(1) dated 17.2.2009 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay applicable to "B" Category Supervisory staff working in the fourth respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "B"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory"B" grade.
Petition in W.P.No.23456 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 17.2.2009 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other "C"- Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade.
Petition in W.P.No.23437 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (4) dated 17.2.2009 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" Category Supervisory staff working in the fourth respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade.
Petitions in W.P.No.23438, 23440 and 23443 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 19.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "C"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory "C" grade.
Petition in W.P.No.23449 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 19.11.2008 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory "C" grade.
Petition in W.P.No.23439 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008-10 dated 6.10.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "C"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory "C" grade.
Petition in W.P.No.23445 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008-10 dated 6.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory "C" grade.
Petition in W.P.No.23453 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 22.12.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory "C" grade.
Petition in W.P.No.23544 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of mandamus to direct the second and third respondents to revise and re-fix the petitioner's scale of pay on par with other "C" Category Supervisors working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Grade employees with effect from 1.3.1991.
For Petitioner :: Mr.T.V.Krishnamachari
in W.P.Nos.23428
to 23457 of 2009
For Petitioner in :: Mr.Mr.G.Raja
W.P.No.23544 of 2009
For Respondents :: Mr.A.Arumugam,AGP for RR.1and 2
in all W.Ps Mrs.Thilagavathi for RR.3 and 4
C O M M O N O R D E R
W.P.Nos.23428 to 23457 of 2009:
Heard both sides. These writ petitioners are working in various posts coming under the "B" and "C" categories of the third respondent Co-operative Sugar Mills. The petitioners moved this Court earlier by filing writ petitions in W.P.Nos.24395 to 24376 of 2008.
2. As the issue involved in all these writ petitions is one and the same, the facts relating to the first writ petition in W.P.No.23428 of 2009 are taken up for discussion. The petitioner Mr.R.Augustin Xavier Arokiasamy was the petitioner in W.P.No.24395 of 2008. The prayer in the earlier writ petitions was for a direction to revise the pay scale to all supervisors of C-Grade employees. Those writ petitions were disposed of by a common order dated 13.10.2008. This Court, without going into the merits of the contentions, directed the second respondent Commissioner of Sugar to dispose of the representations of the petitioners on merits in accordance with law. Pursuant to the said direction, the second respondent by the impugned order dated 17.2.2009 disposed of the representation of the petitioner and similar orders were passed in respect of other writ petitioners. In the operative portion of the said order, in paragraph Nos.6 and 7, he had observed as follows:-
"....6) However, the post of Wireless Operator has not been brought under Common Cadre System and it is continued to be covered under Wage Board Scale and hence your claim to revise your pay on par with Government Pay Scales as in the case of other Supervisory Grade employees in Common Cadre System cannot be considered.
7) Regarding the Court Order issued in W.P.No.15192/2000, dt.22.4.2003 and in W.A.No.1089 and 4074 of 2004 dt: 12.7.2007, it is informed that, in the above Court Order, the Hon'ble High Court has directed only to revise and refix the pay scale of the Petitioner in the above Writ Petition. Also in the G.O.Ms.NO.123, Industries Department, dt: 30.5.2008, issued based on the above Court Order, directions were issued to the Commissioner of Sugar only to revise the pay scale of the Petitioner in the above Writ Petition and not ordered for revision of pay scales to all Supervisory "C" Grade employees and hence your request for revision of your pay scale in the post of Wireless Operator with effect from 13.2.1991 i.e., the date of joining in the post on par with the Government scale of pay applicable to other Supervisory "C" Grade employees in Erstwhile Common Cadre System cannot be considered."
Challenging the same, the petitioners have come forward to file the present writ petitions.
3. The petitioners were also inspired by the fact that some other employees of the Co-operative Sugar mills, who are similarly placed, have moved this Court with a batch of writ petitions, which came to be disposed of by a common order dated 2.9.2009. In those writ petitions, certain employees employed in various sugar mills in Tamil Nadu coming under the control of the second respondent challenged the similar orders passed by the Commissioner of Sugar before this Court and this Court gave the following direction as found in paragraph No.38 of the order, which reads as follows:-
"38. In the result, the writ petitions are allowed in the following terms:-
(1) The respondents are directed to revise the pay scale of the petitioners on par with the scale of pay of the erstwhile supervisory 'C' category employees, notionally fix the same from the date on which the other erstwhile supervisory 'C' category employees were given the benefit of pay revision and however, pay the arrears only from the month of September 2008 as indicated above.
(2) It is, however, made clear that the employees in supervisory 'C' category, who have not claimed to be treated as common cadre employees, shall be treated to have exercised their option under Section 75 of the Act to remain in non-common cadre services and so they will not be entitled for the benefits of the common cadre services...."
Therefore the petitioners claim that they are entitled for similar relief after setting aside the impugned order.
4. On notice from this Court, the third respondent has filed a counter affidavit dated 23.12.2009 together with typed set containing supporting documents. The first contention raised in the counter affidavit was that such writ petitions are not maintainable in the light of the larger Bench judgment of this Court in the case of K.MARAPPAN VS. THE DEPUTY REGISTRAR OF CO.OPERATIVE SOCIETIES, NAMAKKAL reported in 2006(4) CTC 689. When a similar objection was raised by this Court in the batch of writ petitions, in paragraph No.36, this Court has held that such an objection is not maintainable in the light of the subsequent Full Bench judgment of this Court in ANANDA SAYANAM,T.K. VS. THE JOINT REGISTRAR, CO-OPERATIVE SOCIETIES, VELLORE reported in 2007(5) CTC 1. In that case, in paragraph No.16, it was clearly held that for every alleged or imagined invasion of his rights, an employee of a Co-operative Society cannot move the Writ Court on the ground that his rights under Article 21 have been infringed and that Marappan's case will apply in such cases. But that observation was sought to be overcome by the following passages found in paragraph No.37 of the order date 2.9.2009 of this Court, which runs as follows:-
"37. In the case on hand, since large number of employees claim that they have been discriminated in the matter of scale of pay, as held by the Full Bench, since the rights of huge number of members are involved, the writ petition should be held to be maintainable. As held by the Hon'ble Supreme Court in Dineshan's case ((2008) 1 SCC 586) cited supra, since equal pay for equal work is a fundamental right, in the cases on hand, since such fundamental right is sought to be enforced, the writ petitions are maintainable and so, the contention of the respondents in this regard is rejected."
5. This Court is unable to agree with the statement made by the learned Judge. If there is an infringement of a fundamental right and such infringement or a complaint of equal pay for equal work involves enforcement of fundamental right, the writ petition is maintainable. On the other hand, the question of equal pay for equal work is only enshrined under Article 39-d of the Constitution, which is only a directive principles of State Policy and such directive principles under Article 37 are held to be not enforceable by this Court. However, the principles laid down are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making the laws. Therefore, the Larger Bench judgment of this Court Marappan's case referred surpa will squarely apply on the question of maintainability of the grievance is projected by the petitioner. It is not as if the employees are helpless.
6. The grievance projected by the petitioners was that under G.O.Ms.No.866 Industries Department dated 25.7.1984 the State Government had held that the second and third level officers working in the Co-operative Sugar Mills can be transferred from one Organisation to other Organisation and they can be treated as the common cadre and therefore when once the petitioners come under the common cadre coming under Supervisory C Grade there is no rhyme or reason that they should be paid different wages. Therefore, the order of the second respondent Commissioner is illegal and they are eligible for equal ay for equal work and the order should be set aside with proper directions.
7. It is seen from the impugned order that the G.O. relied on by the petitioners was subsequently rescinded by the State Government by G.O.Ms.No.834 Industries (MI.C.2) Department dated 3.12.1997 and in that Government Order, the State Government held that each Co-operative Sugar factory should function as a separate legal entity and a part of the employees who are classified as common cadre functioning under the administrative control of the Commissioner of Sugar should be removed and the employees of the factories must get status of the employees of the concerned factory. It must also be noted that the system of creating some employees out of the Co-operative Sugar Mills as a common cadre was unknown to law until the Tamilnadu Co-operative Societies Act, 1983 was enacted. The statutory backing given in the form of Section 75 was introduced in Chapter VIII of the Tamilnadu Co-operative Societies Act. The said Act was brought into force with effect from 13.4.1988. Therefore, the earlier order of the Commissioner of Sugar at the maximum can only be an administrative convenience without any statutory backing. The reason being that each Co-operative sugar mill is a separate legal entity and they are entitled to appoint their own employees in the absence of any direction issued by the Registrar of Co-operative Societies Act under Section 119 of the old Act and under Section 181 of the new Act. The scales of pay of such employees will have to be determined only by each Co-operative society failing which the employees are entitled to move the proper adjudicatory machinery under the provisions of the Industrial Disputes Act and in which event, the appropriate Industrial Tribunal/ Labour Court should have gone into the issue of appropriate pay scale or in equivalent scale as comparable to other employees or other sugar mills.
8. In the present case, the petitioners are relying upon an administrative order of the Government, which was issued before the enactment of 1983 Act, which has got no legal sanction. Even otherwise such an administrative Government Order has been rescinded by G.O.Ms.No.834 Industries Department dated 3.12.1997.
9. The other contention raised on behalf of the petitioners is that all supervisory Grade C Employees must get same salary or the same scale of pay. This Court is unable to agree as each post is a specific post which has specific list of duties and responsibilities. Merely because the employees are coming under the same category that by itself cannot give any cause of action for employees to demand equal pay as available to all the employees in the same grade. On the contrary, if the petitioners are aggrieved, they should have raised appropriate dispute with reference to non-payment of the same salary as payable to other posts in the same category and not file a writ petition under Article 226.
10. The question of equivalence cannot be considered by this Court without any materials. Except that all the petitioners come under the supervisory category, there are no other materials to show that each of the petitioners are doing the same duty as that of the other electrical supervisors, mechanical supervisors, manufacturing supervisors and civil supervisors coming under Grade C, who are involved in the production line.
11. The Supreme Court in the case of S.C. Chandra v. State of Jharkhand,(2007) 8 SCC 279, held thus:
"26. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
27. Thus, in State of Haryana v. Tilak Raj (2003) 6 SCC 123 : 2003 SCC (L&S) 828 it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily-rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.
28. In State of Haryana v. Charanjit Singh (2006) 9 SCC 321, discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions. .....
33. It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408 : (2007) 1 SCC (L&S) 270. .....
35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay). ......
37. Similarly, in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.(2002) 6 SCC 72 : 2002 SCC (L&S) 822 the principle of equal pay for equal work was considered in great detail. In paras 9 and 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The courts must realise that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences vide Union of India v. Pradip Kumar Dey (2000) 8 SCC 580 : 2001 SCC (L&S) 56."
12. Therefore, in the light of the above, this Court is unable to agree with the order passed by this Court dated 2.9.2009. Besides, the Special Government Pleader informs that already the State has filed appeal against the said order. In any event, without going into the merits of the contentions raised by the petitioners, it is suffice to state that the petitioners' interpretation is based upon the earlier Court's order. The consequential direction issued in G.O.Ms.No.123 Industries Department dated 30.5.2008 all that has been directed was only a revision of pay scales to all supervisory C Grade, but there is no direction that all the posts within the supervisory C Grade must get the same pay on the basis of either a common cadre system or on the basis of constitutional principle of equal pay for equal work.
13. In the counter affidavit, the third respondent has in detail submitted that the petitioners are not entitled for the same scale and they have also set out the historical distinction in the matter of scales of the various settlements the mill had entered into with the Union. It is also brought to the notice of this Court that the Union representing all the Cooperative and Public Sector Sugar Mills had raised an industrial dispute in I.D.No.48 of 2000 stating that the enumerated post must be given the same scale of pay and dearness allowance on par with Government employees and the Tribunal by its award dated 21.2.2002 dismissed the Industrial Dispute and the validity of the same is pending before this Court in W.P.No.1837 of 2006.
14. In any event, this Court is of the view that it is unnecessary to go into the merits of the claim and it is suffice to state that apart from the non-maintainability of the writ petitions and in the light of the judgment of the Supreme Court in the case of S.C. Chandra v. State of Jharkhand,(2007) 8 SCC 279 referred above, this Court is unable to grant the relief prayed for by the petitioners. All the writ petitions stand dismissed. However, there will be no order as to costs. Consequently, the connected miscellaneous petitions stand dismissed.
W.P.No.23544 of 2009:
15. This separate writ petition has been filed by an employee working in M.R.Krishnamurthy Co-operative Sugar Mills Limited, Sethiathope for a similar relief.
16. In the light of the reasons stated in respect of the above batch of writ petitions, the relief cannot be granted and hence the writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petition also stands dismissed.
usk Copy to:
1. The Secretary Industries Department Government of Tamil Nadu Fort St.George Chennai 600 009
2. The Commissioner of Sugar 696, Anna Salai Nandanam Chennai 600 035.
3. The Special Officer National Co-operative Sugar Mills Limited Alanganallur Madurai District 625 502.
4. The Administrator Chengalrayan Co-operative Sugar Mills Limited, Periyasevalai 605 702
5. The Special Officer Kallakurichi I Co-operative Sugar Mills Limited Moongilthuraipattu Villupuram District.
6. The Special Officer Vellore Co-operative Sugar Mills Limited Anmundi, Vellore District.
7. The Administrator Kallakurichi II Co.operative Sugar Mills Limited, Kachirayapalayam, Villupuram District.
8. The Administrator Cheyyar Co.operative Sugar Mills Limited, Thenthandalam Annakkavoor Tiruvannamalai District- 604 401.
9. Special Officer Dharmapuri District Co-operative Sugar Mills Limited Palacode Dharmapuri District.
10. Special Officer Tirupattur Co-operative Sugar Mills Limited Kethandapatti Vellore District.
11.The Administrator Tiruttani Co-operative Sugar Mills Limited Thiruvalengadu Tiruvallore District.
12. The Administrator M.R.Krishnamoorthy Co-operative Sugar Mills Limited Sethiathope Cuddalore District 608 702.
13.The Administrator Subramania Siva Co-operative Sugar Mills Limited Gopalapuram Dharmapuri District.
14. The Chairman & Managing Director Perambalur Sugar Mills Limited 696, Anna Salai Nandanam 600 035.
15.The Chief Executive Perambalur Sugar Mills Eraiyur Post Perambalur 621 133.
16. The Chairman & Managing Director Tamil Nadu Sugar Corporation Limited 696, Anna Salai Nandanam 600 035.
17.The Chief Executive Arignar Anna Sugar Mills Kurungulam Post Thanjavur 613 303.
18.The Administrator MRK Co.operative Sugar Mills Limited Sethiathope 608 702 Chidambaram Taluk Cuddalore District