Madras High Court
C.Sundara Vadivel vs The Government Of Tamilnadu on 20 February, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.02.2013
CORAM:
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA
W.P.No.27377 of 2008
C.Sundara Vadivel .. Petitioner
-vs-
1. The Government of Tamilnadu,
Rep. By its Secretary,
Industries Department,
Fort St.George, Chennai-9.
2. The Commissioner of Sugars,
696, Annasalai,
Nandanam,
Chennai-35.
3. The Special Officer,
Dharmapuri District Co-operatives Sugar Mills Ltd.,
Palakode-636 802.
Dharmapuri District. .. Respondents
Prayer: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Certiorari, calling for the record of the 2nd respondent in RC No.22324/SL 2/2008-1 dated 26.09.2008 and quash the same and direct the second and 3rd respondent to revise and re-fix the petitioner's scale of pay on par with other "C" grade supervisors working in the 3rd respondent sugar mil enabling the petitioners to receive the scale of pay and allowance as that of the holders of other "C" category employees with effect from 01.01.1990.
For Petitioner : Mr.Vaidyanathan
For Respondents : Mr.L.P.Shanmuga Sundaram,
Special Govt. Pleader &
Mrs.T.P.Savitha, G.A.
*****
O R D E R
This writ petition under Article 226 of the Constitution of India has been filed by C.Sundara Vadivel to challenge the order RC No.22324/SL 2/2008-1 dated 26.09.2008, passed by the Commissioner of Sugars, Chennai, in declining the request of petitioner for grant of pay scale at par with that of Government scale with effect from 10.03.1989, i.e. from the date of joining as Instrument Supervisor in Supervisory "C" Grade.
2. The petitioner was appointed as Instrument Supervisor at Dharmapuri District Co-operative Sugar Mills Limited on 10.03.1989. The post was included under Supervisor "C" grade in the service cadre of engineering department of the Sugar Mills. The channel of promotion in the engineering department of the Sugar Mills is as under:
THE DHARMAPURI DIST.CO-OPERATIVE SUGARMILLS LIMITED PALACODE ENGINEER DEPARTMENT CHIEF ENGINEER (COVERED UNDER COMMON CADRE SYSTEM) | DEPUTY CHIEF ENGINEER (COVERED UNDER COMMON CADRE SYSTEM) | | ASSISTANT ENGINEER / ASSISTANT ENGINEER / ELECTRICAL MECHANICAL (COVERED UNDER COMMON (COVERED UNDER COMMON CADRE SYSTEM) CADRE SYSTEM) | | ELECTRICAL SUPERVISORS (SUPERVISORY 'C' GRADE) (COVERED UNDER COMMON CADRE SYSTEM) | | INSTRUMENTS SUPERVISOR DRAUGHTSMEN (SUPERVISORY 'C' GRADE) (SUPERVISORY 'C' GRADE) (NON COMMON NON COMMON CADRE CADRE SYSTEM)
3. The petitioner vide Order in Rc No.4612/2004C1 dated 24.05.2006 was promoted / posted as Assistant Engineer (Mechanical) trainee. In addition, the petitioner is discharging the additional work in the capacity of Boiler Engineer & Workshop Engineer. The petitioner claims to be the only Instrument Supervisor in the 3rd respondent Sugar Mills.
4. The Commissioner of Sugars framed staffing pattern for the Co-operative sugar mills based on the recommendation of the Central Wage Board for sugar industries and on the basis of the report of the Commissioner of Sugars, the following posts in Engineering Department in the Sugar Mills were brought under Supervisory "C" grande;
i)Electrical Supervisor
ii)Mechanical Supervisor
iii)Manufacturing Supervisor
iv)Lab Chemist
v)Civil Supervisor
vi)Junior Engineer
vii)Instrument Supervisor
viii)Draughtsmen The pay scales were also fixed for Supervisory "C" grade by the Wage Board till 1989, wherein all the categories of employees falling under Supervisory "C" grade were given equal scale of pay, by maintaining pay parity.
5. The Government of Tamil Nadu introduced Common Cadre System under which public sector Co-operative Sugar Mills for the posts above the level of Supervisory "C" grade. The purpose of introduction of Common Grade System was for efficient administration and to have a mobile system in which personnel could be transferred from one sugar mill to another.
6. The Commissioner of Sugars included some of the posts earlier included in Supervisory "C" grade posts in the common cadre, i.e. Electrical Supervisor, Mechanical Supervisor, Manufacturing Supervisor, Lab Chemist and Civil Supervisor, while retaining other posts in Supervisory "C" grade in the cadre of Sugar Mills.
7. The Common Cadre was subsequently abolished in the year 1987. After abolition of Common Cadre, the pay scale of common cadre employees earlier in Supervisory "C" grade were placed in pay scale on recommendation of the Commissioner of Sugars, by the State Government.
8. It is the case of petitioner, that the Commissioner of Sugars created pay disparity among the employees working in the same grade, i.e. Supervisory "C" Grade without any reasonable classification.
9. It is also submitted, that introduction of Common Grade System could not be the ground for discrimination, nor it provides any intelligible differentia to fix different scale of pays to posts, which were retained in Sugar Mill Cadre and those included in the Common Cadre.
10. It is submitted, that respondent no.2 was bound to maintain pay parity between employees falling under Supervisory "C" grade.
11. It is also submitted, that after abolishing the Common Cadre vide G.O.Ms.No.834 dated 31.12.1997, the pay scale of employees of erstwhile Common Cadre Supervisory "C" grade were revised and refixed by the respondent vide G.O.Ms.No.302 Industries Department dated 25.06.2000. However, the other categories of Supervisory "C" grade, which were not included in the Common Cadre were not considered for the refixation in new scale of pay by the respondents.
12. This action of the respondents resulted in creation of different pay scales for employees working in the same Cadre. The fixation of different pay scale therefore is challenged, being illegal and violative of Article of 14 of the Constitution of India.
13. The petitioner and other persons aggrieved over the pay disparity filed several representations with the 2nd respondent, who promised to look into the matter. On failure of 2nd respondent to take any action, an employee working in Supervisory "C" grade in the Sugar Mills, filed W.P.No.15192 of 2000, to get redressal of her grievance, whereas the petitioner was advised to wait on the bonafide belief that the decision in W.P.No.15192 of 2000 would be implemented in the case of petitioner also. The petitioner accordingly waited for the result of writ petition.
14. This Court, vide Order dated 22.04.2003 ordered revision and refixation of pay scale of petitioner Chandra in W.P.No.15192 of 2000 at par with other Supervisory "C" personnel grouped under erstwhile Common Cadre with effect from 01.01.1990. The order was upheld by the Hon'ble Division Bench vide W.A.No.4074 of 2004. The order was also implemented on 04.06.2008 by the State Government by directing Sugar Mills to revise and refix the pay of Mrs.Chandra at par with that of "C" grade employees with effect from 01.01.1990.
15. The case of the petitioner is that the petitioner is similarly placed, as that of Mrs.Chandra working in the same department, therefore, his claim is covered by the judgment of this Court.
16. It is also the submission of petitioner, that posts in the Supervisory "C" grade are in same rank and cadre and as per the staffing pattern, are all entitled to pay parity, as recommended by the 3rd Central Wage Board. The action of the respondents, therefore, is in violation of right to equality guaranteed under Article 14 of the Constitution.
17. That the 2nd respondent issued individual letters to some employees refixing the scale of pay at par with erswhile Common Cadre employees, thereby respondents have created disparity, as person junior to the petitioner working as Lab Chemist is now drawing higher pay than the petitioner.
18. The petitioner, being aggrieved by the action of the respondents in not deciding his representation filed W.P.No.16781 of 2008 for issuance of a writ in the nature of mandamus, to direct the respondent nos.2 & 3 to revise and refix the pay of petitioner at par with other "C" grade employees.
19. The writ petition was disposed of by this Court, by directing the 2nd respondent to dispose of the representation filed by the petitioner in accordance with law. In pursuance to the order passed by this Court, the impugned order has been passed, rejecting the claim of petitioner.
20. The impugned order reads as under:
DEPARTMENT OF SUGAR FROM TO Thiru Atulya Misra I.A.S., Thiru C.Sundaravadivel Commissioner of Sugar Instrument Supervisor 690, Anna Salai, Nandanam, Dharmapuri Dist. Cooperative Sugar Mills Ltd., Chennai-600 035.
THROUGH:
The Special Officer Dharmapuri Cooperative Sugar Mills Rc. No.22324 / SL2 / 2008-1 dt: 26.9.2008
----------------------------------------- Purattasi, 10th, Thiruvalluvar Aandu, 2039
------------------------------------------ Sir, Sub: Pay revision Hon'ble High Court Order, dt:23.7.008 in W.P.No.16781 to 16886 of 2008 Filed by Thiru C.Sundaravadivel and 8 others Directions issued Regarding.
Ref: 1) Thiru C.Sundaravadivel, Instrument Supervisor, Dharmapuri Dist. Cooperative Sugar Mills representation dt: 1.11.2007, 20.05.2008 and 06.09.2008
2) Hon'ble High Court Order, 23.7.2008 in W.P.No.16781 to 16886 of 2008 filed by Thiru C.Sundaravadivel and 8 others.
I invite your attention to the references cited.
Your representation 1st cited has been examined in the light of the Hon'ble High Court Order second cited, wherein the Hon'ble High Court has directed the Commissioner of Sugar to consider your above representation and pass orders on merits and in accordance with law within a period of 4 weeks from the date of receipt of the copy of the said Court Order. A copy of the above Court Order has been received in this office on 9.9.2008.
In your representation first cited, you have stated that your respective post viz. (Instrument Supervisor) comes under the Supervisory "C" Grade and requested to revise your pay scales on par with that of Government Scale with effect from 10.3.89 i.e., the date of your joining in the post of Instrument Supervisor in Supervisory "C" Grade based on the Government Orders, Commissioner of Sugar Circulars indicated in your representation and also based on the Hon'ble High Court Order passed in W.P.No.15192/2000, dt: 22.4.2003 and in W.A.No.1089 and 4074 of 2004 dt: 12.7.2007.
In this connection, it is informed that the Common Cadre System was introduced by the Government as per the G.O.Ms.No866, Industries Department dt: 25.7.1984 and as per the Commissioner of Sugar letter in Rc.no.23941/1984/C1, dt.16.10.1984 certain posts/categories were brought under Common Cadre System due to exigencies and administrative reasons and the Common Cadre System was further extended to cover certain other posts also as per the Commissioner of Sugar letter No.25185/C3/1989, dt:27.12.1989. It is also informed that not all the posts in Supervisory "C" Grade were brought under Common Cadre System, only certain posts of Supervisory "C" Grade were brought under Common Cadre System due to its exigencies and administrative reasons.
However, the post of instrument Supervisor 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 casexof other Supervisory Grade employees included in Common Cadre System cannot be considered.
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 to revise the pay scale of the Petitioner in the above Writ Petition only 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 Instrument Supervisor with effect from 10.3.89, i.e., the date of your joining in the post on par with the Government scale of pay applicable to other Supervisory "C" Grade employees included in Erstwhile Common Cadre System cannot be considered.
Your representation first cited in the reference is thus stands disposed.
Sd/-
for Commissioner of Sugar"
21. Learned counsel for the petitioner vehemently contended, that the impugned order cannot be sustained, as the case of petitioner is squarely covered by the decision of this Court in W.P.No.15192 of 2000 in R.Chandra vs. The Government of Tamil Nadu and others, decided on 22.04.2003, wherein directions were issued to grant same pay, as was granted to other Supervisory "C" category employees in common cadre.
22. This contention of the learned counsel for the petitioner is totally misconceived. The Hon'ble High Court in the case of R.Chandra had issued a writ in nature of Mandamus for the reason, that the post of R.Chandra was also included in the Common Cadre, but she was being denied the same pay only on the ground that she was a lady, though she had shown her willingness to come under the Common Cadre and in fact was posted as Assistant Engineer (Mechanical). Subsequently, her request was accepted and it was decided to appoint her as Assistant Engineer (Mechanical), a post in the Common Cadre. It was for this reason, that she was directed to be treated at par with the Common Cadre employees for purpose of pay scale. Therefore, the petitioner, being not a common cadre employee, cannot be said to be similarly situated, therefore, cannot take any advantage of the judgment of this Court in W.P.No.15192 of 2000 (supra).
23. It was next contended by the learned counsel for the petitioner, that once the petitioner was in Supervisory "C" category, he could not be denied the same scale of pay as was granted to the Common Cadre employees, as both were performing similar duties, therefore, there can be no discrimination between two sets of employees.
24. This contention again is misconceived. The Common Cadre employees were the employees of the apex society, who could be transferred to any of the Co-operative Sugar Mills, whereas others like petitioner were sugar mill employees, thus both fell in two different cadres, therefore, petitioner cannot claim equality or common pay scale with common cadre employees, merely because subsequently, the cadre was abolished and the employees of Common Cadre were absorbed in the sugar mills.
25. The Hon'ble Supreme Court in the case of State of Haryana and others vs. Charanjit Singh and others, 2005 (4) LLN 949, has been pleased to lay down as under:
"17) Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors."
26. When the case of petitioner is tested on the test stone of the judgment of the Hon'ble Supreme Court, it can safely be said, that the petitioner has failed to make out a case to claim parity with Common Cadre employees, who form distinct and separate cadre from that of petitioner.
27. This writ petition also deserves to be dismissed in view of admission of the petitioner, that he was a fence sitter and waited for the decision of this Court in the case of other employees, who had approached this Court in time. The petitioner decided to approach this Court only after the decision by this Court. Therefore, besides the fact, that the petitioner's case is not covered by the earlier decision, he cannot claim discretionary relief under Article 226 of the Constitution of India, as he was not vigilant and had failed to approach this Court in time as held by the Hon'ble Supreme Court in Sulochana Chandrakant Glande vs. Pune Municipal Transport and others, 2010 (8) SCC 467.
28. For the reasons stated above, finding no merit in this writ petition, it is ordered to be dismissed.
29. No costs.
ar To
1. The Government of Tamilnadu, Rep. By its Secretary, Industries Department, Fort St.George, Chennai-9.
2. The Commissioner of Sugars, 696, Annasalai, Nandanam, Chennai 35
3. The Special Officer, Dharmapuri District Co-operatives Sugar Mills Ltd., Palakode-636 802.
Dharmapuri District