Madras High Court
All Teachers Front vs )State Of Tamilnadu Rep. By Its on 31 October, 2008
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:31.10.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.21490 of 2006 --- All Teachers Front, rep. by its General Secretary N.Umathanu, 5,Shanmugam Street, K.K.Pudur, Coimbatore-641 038. ... Petitioner Vs. 1)State of Tamilnadu rep. by its Secretary to Government, Education,Science & Technology Department, Fort St.George, Chennai-9. 2)State of Tamilnadu, rep. by its Secretary to Government, Finance Department, Chennai-9. 3)Director of School Education, Chennai-6. ... Respondents This petition came to be numbered by transfer of O.A.No.7063 of 1996 from the file of the Tamilnadu Administrative Tribunal, Chennai praying for the issuance of a Writ of Mandamus, directing the respondents to fix the scale of pay of Record Clerk and Library Attender working in the Higher Secondary Schools on par with that of Lab Attenders at Rs.950/- (or) in the alternative to fix the scale of pay of Record Clerk and Library Attender on par with that of their counter part working in the Central Government. For petitioner : Mr.S.Mani For respondents : Mrs.C.K.Vishnupriya Addl. Government Pleader O R D E R
All Teachers Front rep. by its General Secretary, Coimbatore is the petitioner in this writ petition. It is a registered Association formed by the non-teaching staff working in Tamilnadu Educational Department Higher Secondary Schools namely Record Clerks, Library Attenders and Office Assistants.
2. According to the petitioner, the requisite qualification for appointment and method of recruitment for the posts of Record clerk, Library Attenders and lab Attender are one and the same and they are all from the same cadre. Upto the third pay commission, there was no difference in the scale of pay. However, in the IV Pay Commission, the scale of pay for the post of lab attender was fixed at Rs.555/-, whereas, the scale of pay for Record Clerk and Library Attender was fixed at Rs.475/- with effect from 1.10.1984. Pursuant to the fourth Pay Commission recommendation, the One Man Commission recommended to revise the scale of pay to the following posts as follows:
Lab attender from Rs.555/- to Rs.610/-
Record Clerk and Library Attender from Rs.475/- to Rs.555/-.
3. Representations were made by the petitioner-association to revise the scale of pay for the post of Library Attender and Record Clerk on par with that of Lab Attender at Rs.610/- and before the consideration of the same, the fifth pay commission came to be announced, wherein, the scale of pay for Lab Attender was fixed at Rs.950/- for Record Clerk and Library Attender, it was fixed at Rs.775/-. As the disparity became wider in the cadre of Record Clerk, Library Attender and Lab Attender, representations were made to the Director of School Education Madras on 17.7.1996 and to the higher authorities. As no orders were passed, the petitioner association has filed Original Application before the Tamil Nadu Administrative Tribunal, Madras for suitable directions to the respondents to fix the scale of pay for the post of Record Clerk and Library Attender, on par with that of Lab Attender at Rs.950/-.
4. Learned counsel for the petitioner submitted that as the educational qualification and the method of recruitment being similar and having regard to the fact that upto third pay commission the scale of pay, for the three posts was one and same, there is no justification in denying equal scale of pay. He further submitted that when the government announced the scales of pay of State government staff on par with that of the scales of Central Government Staff, there is no justification in fixing scale of pay at Rs.775/- for the post of Record Clerk and Library Attender, whereas, their counterpart working in Central Government was given Rs.825/-. It is the contention of the petitioner that the State Government being the model employer, should have followed a uniform yardstick and given the scale of pay as per the pay commission report.
5. He further contended that the nature of work for all the three categories are only to assist the superior staff. In the case of Record Clerk, records are to be produced as and when they are called for by the Teachers and in the case of Lab Attenders, they have to assist the teachers in supplying apparatus and other things used in the Laboratories. In the case of library attenders, they have to supply books to the readers, particularly to the teachers and students. Comparing the nature of duties of the three posts, learned counsel for the petitioner submitted that as the nature of job is only to assist the teaching staff, there should not be any difference in the scales of pay between the three posts. Therefore, he submitted that there is a discrimination violating Articless 14 and 16 of the Constitution of India.
6. Learned counsel for the petitioner further contended that once all the posts fall under the common cadre and that the qualification being the same, the scales of pay should also be the same. There is no reason for deviating the scale of pay, given right from the beginning, until the third pay commission. He further submitted that equity demands revision of scale of pay, in the post of Library Attender and Record Clerk to the level of Lab Attender to maintain the common cadre.
7. He further submitted that as there is no scope for regular promotion for Record Clerks and Library Attenders, the respondents ought to have fixed equal scale of pay to that of Laboratory attenders. For all these reasons, he prayed that a direction may be issued to the respondents to revise the scale of pay to Record Clerks and library attenders working in Higher Secondary schools on par with that of laboratory attender at Rs.950/-.
8. The respondents in their counter affidavit have submitted that all these posts, namely, record clerk, library attender and Laboratory attender are not in the common cadre. Posts like Junior Assistant, Assistant Superintendent are in the common cadre. Among the three posts, namely record clerk, Library Attender, Laboratory attender, the post of record clerk is coming under common category and other posts, namely, Library attender, and Laboratory attender are not classified as common category posts. The respondents have submitted that before the implementation of recommendation of fifth pay commission with effect from 1.6.1998, the scales of pay for Tamil Nadu Government employees were granted on par with Central Government employees. However, while sanctioning the scales of pay, vertical and horizontal relativity among the posts were also taken into consideration, apart from qualification and nature of work and hence the claim of the petitioner that all the above three posts fall under the same category and therefore, the time scale of pay should be equal is not maintainable.
9. The respondents have further submitted that the requisite qualifications for the posts of record clerk, library attender and Laboratory attender are not the same. The qualification for the post of Library attender is "S.S.L.C.", whereas, the educational qualification for the post of record clerk is "S.S.L.C. Failed". It is submitted that upto 4th Tamil Nadu Pay Commission, the scales of pay for these posts were equal. However, the One Man Committee appointed in the year 1986 i.e. after constitution of the Tamil Nadu Pay Commission after taking into consideration of the educational qualifications recommended higher scale of pay for Laboratory Attender at Rs.555-975.
10. Regarding the post of library attender, it is submitted that librarian grade-III (untrained) with S.S.L.C. qualification was in the pre-revised scale of pay of Rs.555-980 and Rs.950-1500 in the Fourth and Fifth Tamil Nadu Pay Commission. The respondents have contended that the post of Library attender cannot be compared with that of Library grade-III (untrained) and therefore, they were rightly placed in the scale of pay of Rs.475-575 and Rs.775 -1030, in the earlier pay revision. The respondents have submitted that the post of record clerk cannot be compared with that of Laboratory Attender (re-designated as Laboratory Assistant) on the basis of educational qualification. The post of Laboratory Attender with higher educational qualification namely, "a pass in S.S.L.C." is on a higher scale of pay of Rs.950-1500 and Record clerk, which just require "SSLC failed" qualification is placed in a lower scale of pay at Rs.775-1030. It is rational to note that the post of record clerk is not a special post in school education department, but it is a common category post available in all Government departments. As such, any revision of scale of pay of Record clerk in School Education Department would ultimately result in revision of scale of pay of record clerks in all the Government departments.
11. As regards the contention that there is no scope for promotion to the post of record clerk and library attender, it is submitted that in order to avoid stagnation, the government have provided Selection Grade and Special Grade to those stagnating in a post for 10/20 years. Thus, it is evident that Record Clerks and Library Attenders are also availing the benefit of moving over to Selection Grade and Special Grade scales of pay. Apart from that, a new post of Record Assistant in the scale of pay of Rs.950-1500 has also been created to provide promotional opportunities to Record Clerks in all Government Departments. In view of the above, the respondents have prayed for dismissal of the writ petition.
12. Heard the learned counsel for the parties and perused the materials available on record.
13. The requisite educational qualification for the post of record clerk, library attender is "S.S.L.C. failed." Whereas, the educational qualification prescribed for the post of library attender is "a pass in S.S.L.C." The scale of pay of all these posts were equal upto Tamil Nadu 4th Pay commission. However, the One Man Committee constituted in the year 1986, after the 4th Tamil Nadu Pay commission had recommended higher scale of pay at Rs.555-970 to Laboratory Attender, taking into consideration the difference in educational qualification fixed for the said post.
14. Apart from fixing Central scales of pay, horizontal and vertical relativity among the posts has been taken into consideration for fixing the scale of pay, with reference to the above posts in various departments.
15. Pleadings further disclose that regarding the post of library attender grade-III (untrained) with the educational qualification as "S.S.L.C", in the pre-revised scale of pay of Rs.555-970 has been enhanced to Rs.950-1500 pursuant to the fifth Pay Commission. The government have categorically stated that the posts of library attender cannot be compared with that of librarian grade-III (untrained). The scale of pay of library attender in pre-revised scale was Rs.475-775 and pursuant to the 5th Tamil Nadu Pay Commission report, it has been enhanced to Rs.775-1030.
16. The post of Laboratory Attender with the qualification as 'S.S.L.C Pass' carries a higher scale of pay of Rs.950-1500 and it cannot be compared with the post of Record Clerk which can be filled up with a S.S.L.C failed candidate. The sum and substance of the respondents is that revision of higher scale of pay to the post of laboratory attender is based on educational qualification. It is also to be noted that the respondents have disputed that the nature of duties of the three categories, namely, record clerk, library attender and laboratory attender as different. Even assuming that these employees are discharging similar duties, different scales of pay can be fixed on the basis of the difference in educational qualifications prescribed for the post.
17. On the question of pay parity, it is useful to extract few judgements of the Supreme Court, wherein the Apex Court has held that evaluation of jobs for the purpose of scales of pay must be left to the expert body and unless, there are any malafide, its evaluation should be accepted.
18. In Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India reported in 1988 3 SCC 91 the Supreme Court observed as follows:(SCC p.100, para 7) "7)Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, 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 make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgement by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgement is made bonafide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right."
19. In State of U.P. and others vs. Ministerial Karamchari Sangh reported in 1998 1 SCC 422, at paragraph 14 of the judgement, the Supreme Court held as follows:
"14.Having regard to the above position brought out clearly in the impugned Office Memorandum and in the light of the long line of decisions of this Court to the effect that the principle of "equal pay for equal work" is not always easy to apply; that there may be any educational or technical qualification which may have a bearing on the scales which the holders bring to their job although the designation of the job may be the same. We do not think that the High Court was justified in issuing the mandamus."
20. While dealing with the issue of disparity in the pay of Sub Assistant Engineer in Education Department of West Bengal Vis a vis and the claim of operator-cum-mechanic in Government of West Bengal vs. Tarun K.Roy and others reported in 2004 (1) SCC 347 the Supreme Court held as follows:
14: Article 14 reads with Article 39 (d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.
In Paras 16 and 18 it is held that, the post of Operator-cum- Mechanic and Sub-Assistant Engineer are technical posts. The court in exercise of its powers of judicial review cannot hold that matriculates with a certificate from ITIs or simply graduates in science would be entitled to hold the post of Sub-Assistant Engineers.
In para 20, the Apex court went on to add the question of violation of Article 14 of the Constitution of India on the part of the State would arise only if persons are similarly placed. Equality clause contained in Article 14 in other words, will have no application where persons are not similarly situated or when there is a valid classification based on a reasonable differentia. The doctrine of equal work, therefore is not attracted in the instant case.
In paras (21) and (22) it is held that there is nothing on record to show that the duties and functions of two categories of employment are on a par, and, thus, parity in scales is not permissible. The very fact that from the very beginning two different pay scales were being maintained is itself suggests of the fact that the duties and functions are also different. In fact it is not disputed that the two posts of Sub Assistant Registrar is a higher post.
At para (30) the Supreme Court held that the respondents do not have the requisite technical qualification. Only because they are graduates, they cannot, claim equality with the holders of diploma in Engineering. If any relief is granted to the respondents on the said ground the same will be in contravention of the statutory rules.
21. In Deb Narayan Shyam, Versus State of West Bengal reported in (2005) 2 SCC 286, the Supreme Court considered the issue of disparity of pay between the post of Surveyors and Amins under the Land Records and Surveyors, Directorate, Government of West Bengal. It was contended that the work of Surveyors and Amins and the qualifications for recruitment are also almost identical. The department of Finance, Government of West Bengal issued a notification prescribing different scales of pay for Surveyors and Amins working in different departments under the Government of West Bengal. The Amins claimed same pay as that of Surveyors on the principle of equal pay for equal work. A Learned Single Judge allowed the writ petition and observed that there is no reason to differentiate between Amins and Surveyors. The learned Single Judge further held that once an Amin is appointed on the basis of the same qualification and discharged the same duty as that of Surveyor, same pay scale should be given to Amins as that of Surveyors. The Order of the learned Single Judge was not challenged by the Government. Based on the first order, many writ petitions were allowed and in some cases, the appeals preferred by the State were not pressed. The Special Leave Petition preferred by the State was also withdrawn. Later Amins in Cooch-Bihar District filed a writ petition in the High Court and sought for the same relief which was given to the Amins in a series of decisions given by the Calcutta High Court.
22. At paragraph 15, the Supreme Court Deb in Narayan Shyam's case, cited supra, held that;
"the principles of equal pay for equal work depends upon the nature of duties performed by a particular category of posts and the qualifications for their recruitment. From the above discussion, it is clear that neither the duties nor the functions are identical nor the recruitment for the posts of Amins and Surveyors is identical as the qualification for recruitment for both the posts is different. A large number of decisions have been cited before us with regard to the principle of "equal pay for equal work" by both sides. We need not deal with the decision to overburden this judgement. Suffice it to say that the principle is settled that if two categories of posts perform the same duties and functions and carry the same qualification, then there should not be any distinction in pay scale between two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work."
In the above reported case, reference has been made to the following decisions:
1.(1989) 1 SCC 121 State of U.P. v. J.P.Chourasia 2.1993 Supp (1) SCC 153 Secy., Finance Deptt. v. W.B. Registration Service Assn.
3.(1994) 2 SCC 521 Shyam Babu Verma v. Union of India;
4.(1994) 4 SCC 78 State of W.B. v. Hari Narayan Bhowal
5.(1998) 2 SCC 589 Union of India v. Ram Gopal Agarwal
6.(2000) 8 SCC 580 Union of India v. Pradip Kumar Dey
7.(2004) 1 SCC 347 Govt. of W.B. v. Tarun K.Ray
23. The same principle has been reiterated in State of West Bengal and another vs. T.K.Ghosh and others reported in 2005 10 SCC 339. The facts of the case and the judgements of the Division Bench of the State of West Bengal under appeal are as follows:
" ... overseer and sub-overseer are concerned, they have been placed in one scale of pay and there was no grievance about it. However, the draftsmen placed in Categories (ii) and (iii), namely, those who had government school pass certificate or SF certificate and those who have only experience to their credit, claimed to be placed in the category of overseer and sub-overseer in the scale of Rs.380-910. They filed a writ petition in the High Court. Besides the claim for the same emoluments for similar work, they also claimed other allowances, for example, special allowancae, cycle allowance and arduous duty allowance, etc. The claim was preferred mainly on three grounds. First, that draftsmen constitute one category and discharge similar work, therefore, there should not be any distinction in the matter of emoluments to be paid to them. The principle ;of equal pay for equal work would according to be petitioner-respondents, be applicable in their cases. The next contention seeks to have been that in other departments such different categories have been merged into one category and one pay scale has been made admissible to them, therfore, the same should be done insofar as draftsmen in different departments are concerned. In support of their contentions they had referred to some decisions of this Court. The learned Single Judge held that the draftsmen have been discharging similar duties and that being the position they are entitled to the same emoluments. It is further held that the academic qualifications will have no bearing on the amount of the emoluments paid for a similar nature of work."
24. The Division Bench confirmed the view of the learned Single Judge, which is extracted above. However on appeal, the Supreme Court following the decision in Tarun.K. Roy's case 2004(1) SCC 347 and the observations made in Shyam Sharma vs. Union of India reported in 1994 2 SCC 521, at paras 8,9, held that, " it has been clearly held that it is always open to the State Government to put its employees in the same service in different categories for the purpose of the scale of pay according to the qualifications possessed by them."
At paragraph 11 of the judgement reported in State of W.B. vs. T.K.Ghosh 2005 (10) SCC 339 the Apex Court held that;
"There is, therefore, no manner of doubt that the educational qualifications may be considered as a valid basis for categorising the employees though discharging similar duties, but possessing different qualifications having bearing on quality of work discharged. As we have already observed, in the case on hand, it could not be established, though so observed by the High Court, that different categories of draftsmen performed identical nature of duties much less of the same quality. The fact that there are different nature of duties, is also established by the averments made in the writ petition itself as referred to in the earlier part of this judgment. Otherwise also it stands to reason that where more than one class of employees are designated as draftsmen, having qualification ranging from overseers to nil technical qualification or only experience, the duties of higher responsibilities requiring more efficient handling would obviously be assigned to the persons having better and higher technical qualifications rather than to those who have no qualification or have mere experience or some other certificate plus experience. The purpose seemed to be to provide and assign different kinds of duties to different category of officials in the same class based on their qualification."
Ultimately based on the difference in educational qualifications, the Apex Court set aside the orders of the Division Bench of the Calcutta High Court.
25. Again in Sohan Singh vs. Punjab State Electricity Board Patiala reported 2007 (5) SCC 528, the Apex Court reiterated that parity in scale cannot be claimed when educational qualifications are different and fixation of different scales of pay for the employees on the basis of the educational qualification perse not discriminatory.
26. In Tamil Nadu Higher Secondary School Headmasters' Association, rep. by its President,C.A.Baladhandapani vs. Secretary to Government of Tamil Nadu Education Department Madras and others reported in (2008) 7 MLJ 191 this court held that, "The principle of equal pay for equal work can apply only if there is complete and wholesale identity between the two groups. Law is well settled that granting pay scales is within the exclusive domain of the executive with the constitutional frame work of separation of powers. It is the prerogative of separation of powers, having the assistance of the experts, with requisite expertise, to undertake examination of several factors, before rationalisation of scale of pay of different groups. This court further held that High Court would not ordinarily issue a Writ in the nature of Mandamus to direct the executive to grant a particular scale of pay to a particular post. Taking into consideration of various factors, such as degree of skill, strain of work, responsibilities undertaken, nature of duties and such other factors, is the prerogative of the executive."
27. In the light of the above decisions of the Supreme Court, I do not find that the Government have adopted discrimination in the matter of fixation of pay scale for the posts of record clerk, Library attender and Laboratory attender. The reasons assigned by the government that horizontal and vertical relativity among the posts in the State Government were taken into consideration with reference to the educational qualifications prescribed for the posts are in consonance with the ratio decidenti of the judgements of the Supreme Court and therefore they cannot be said as arbitrary or irrational, warranting interference. Courts have consistently held that in matters of fixation of pay, the function should be left with the exclusive domain of the executive. In view of the above, the petitioners are not entitled to the relief sought for in the writ petition. Hence the writ petition is dismissed. No costs.
Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vk To
1)The Secretary to Government, Education,Science & Technology Department, Fort St.George, Chennai-9.
2)The Secretary to Government, Finance Department, Chennai-9.
3)The Director of School Education, Chennai-6.
+1cc to Mr.S.Mani,Advocate Sr 60979 +1cc to Govt.Pleader Sr 60923 NM(CO) km/15.10. W.P.No.21490 of 2006