Madras High Court
M.Kumaravelu vs The Principal Secretary To Government on 21 July, 2022
Author: S.M. Subramaniam
Bench: S.M.Subramaniam
W.P.No.1861 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.07.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.1861 of 2015
M.Kumaravelu ... Petitioner
Vs.
1.The Principal Secretary to Government,
Finance (CMPC) Department,
Fort St.George, Chennai – 600 009.
2.The Director,
Tamil Nadu State Health Transport Department,
Chennnai – 600 032. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus to call for the records
relating to the impugned order of the first respondent in Letter
No.6163/CMPC/2013-2, dated 17.02.2014 and quash the same and direct
the respondents to grant the Grade Pay of Rs.4800/- in the Pay Band of
Rs.9300-34800/- as requested in my representation dated 02.05.2012 and
grant me all consequential benefits.
For Petitioner : Mr.P.Mohanraj
For Respondents : Mr.L.S.M.Hasan Fizal
Additional Government Pleader
ORDER
The Writ on hand has been instituted questioning the validity of the https://www.mhc.tn.gov.in/judis Page 1 of 14 W.P.No.1861 of 2015 order of rejection dated 17.02.2014 for grant of grade pay of Rs.4800/- in the pay band of Rs.9300-34800/- as requested by the petitioner in his representation dated 02.05.2012.
2.The petitioner was working as Supervisor at the Mobile Workshop (Health), Thanjavur. He was initially appointed as Helper on 21.06.1982 and promoted to the post of Fitter-II in 1985, Mechanic – II in 1989, Mechanic–I (Technical Assistant Grade-III) in 2005 and Foreman (Chargeman-Electrical) on 22.10.2007. The post of Chargeman (Electrical) has been re-designated as Supervisor. The petitioner at the time of filing of the Writ Petition, was paid salary in the pay band of Rs.9300-34800/- with Grade Pay of Rs.4200/-. The grievances of the writ petitioner is that in respect of similar post in the Electricity Directorate under the Government of Tamil Nadu, higher grade pay was granted.
Citing the higher grade pay granted to the post of Superintendent in Electricity Department and Police Department, the petitioner set out a claim for enhancement of grade pay which was considered by the Government and rejected.
3.The learned counsel for the petitioner made a submission that the equivalent category in the electrical department and police department was https://www.mhc.tn.gov.in/judis compared for the purpose of enhancing the grade pay to the writ petitioner.
Page 2 of 14 W.P.No.1861 of 2015However, the respondents have not considered the same and rejected, which is perverse.
4.The learned Additional Government Pleader appearing on behalf of the respondents objected the said contentions by stating that comparison cannot merely be based on the category and the job responsibility, nature of the work involved and service rules which all are applicable are to be considered for the purpose of grant of equalisation of grade pay between various categories. It is not as if mere comparison is to be considered for grant of higher grade pay which is otherwise impermissible with reference to the pay rules in force.
5.In this regard an elaborate consideration was made by the respondents and the details regarding the grant of special pay is elaborated in para 4, 5 and 6 of the counter affidavit, which reads as follows:
4.Regarding the averments made in paragraphs 4 and 5 of the affidavit, it is submitted that the petitioner's version that the Supervisor post in the Electricity Board and Tamil Nadu State Health Transport Department are the same cannot be accepted, as the rules governing the Tamil Nadu State Health Transport Department and Electricity Board are not one and the same and parallel cannot be drawn in the functioning and https://www.mhc.tn.gov.in/judis organizing patterns. It is submitted that in para 4 of the Page 3 of 14 W.P.No.1861 of 2015 affidavit the petitioner has compared the pay scales of Supervisor in Tamil Nadu State Health Transport Department and Supervisors in the erstwhile Tamil Nadu Electricity Board (TNEB), now trifurcated into three companies, namely, TNEB Ltd., TANGEDCO and TANTRANSCO. The pay scales of employees of these companies and that of employees of the Government are entirely different. Hence, the contention of the petitioner seeking equal pay with the posts of supervisor in the TNEB is not acceptable. Further that the adhoc rules as per G.O.Ms.No.1761, Health and Family Welfare Department, dated 14.06.1987 in respect of Chargeman (Electrical) and Chargeman (Mechanical) now re-designated as Supervisor are as follows:-
The Table 1 Helper By direct recruitment 2 Chargeman (a) By transfer from the post of Store-
(Mechanical) Keeper (or) Service Engineer (or) Foreman (or)
(b) By promotion from the post of Mechanic Grade – I (or) Technical Assistant Grade III (or) Assistant Store – Keeper (or)
(c) By direct recruitment Provided that the proportion in which vacancies shall be filled by the methods specified in terms (b) and (c) above shall be 1:3 3 Chargeman (a) By transfer from the post of Store-
(Electrical) Keeper (or) Service Engineer (or) Technical Assistant Grade – II (or) Foreman (or)
(b) By promotion from the post of Electrician Special Grade (or) https://www.mhc.tn.gov.in/judis Technical Assistant Grade III (or) Assistant Store – Keeper (or) Page 4 of 14 W.P.No.1861 of 2015
(c) By direct recruitment Provided that the proportion in which vacancies shall be filled by the methods specified in terms (b) and (c) above shall be 1:3 4 Appointing Authority The Appointing Authority for the posts shall be the Director, Tamil Nadu State Health Transport Department, Madras.
5 Qualifications (a) No personal shall be eligible for appointment to the posts specified in Column (1) of the table below by direct recruitment if he has completed OR will complete the age specified in the corresponding entry in Column (2) thereof on the first day of July of the year in which the selection for appointments is made.
The table
Posts : Age
(1) (2)
1 Helper Thirty years
2 Chargeman (Mechanical) Thirty years
3 Chargeman (electrical) Thirty years
(b) Other Qualifications: No person shall be eligible for
appointment to the posts specified in the column (1) of the Table below by the methods specified in the corresponding entries in Column (2) thereof unless he possesses the qualifications specified in the corresponding entries in Column (3) thereof.
The Table
Post Method of Qualification
appointment
1 Chargeman By Promotion (a) National Trade Certificate
(Mechanical) (b) Experience as Mechanic
Grade (or) Technical
Assistant Grade – III (or)
https://www.mhc.tn.gov.in/judis Assistant Store Keeper for a period of not less than five Page 5 of 14 W.P.No.1861 of 2015 years (or)
(a) A diploma in Mechanical Engineering
(b) Experience as Mechanic Grade – I (or) Technical Assistant Grade III (or) Assistant Store Keeper for a period of not less than one year and
(c) A Driving License By direct (a) A diploma in Mechanical recruitment Engineering
(b) Experience in any Automobile Workshop for a period of not less than one year
(c) A driving licence 2 Chargeman By Promotion (a) National Trade Certificate (Electrical) and
(b) Experience as Electrician Special Grade (or) Technical Assistant Grade III or Assistant store keeper for a period of not less than five years (or)
(a) A diploma in Electrical Engineering
(b) Experience as Electrician, Wireman Special Grade (or) Technical Assistant Grade III (or) Assistant store keeper for a period of not less than one year and
(c) A driving licence By direct (a) A diploma in Electrical recruitment Engineering
(b) Experience in any Automobile Workshop for a period of not less than one year and
(c) A driving licence https://www.mhc.tn.gov.in/judis 3 Probation Every person appointed to the posts by direct recruitment shall from the date on which he joints Page 6 of 14 W.P.No.1861 of 2015 duty, be on probation for a total period of two years on duty within a continuous period of three years.
4 Test Every person appointed to the post of Chargeman (Mechanical) and chargeman (Electrical) shall within the period of his probation, pass theh Account test for executive officers test failing which increment shall be stopped without cumulative effect till he passes the said test. Whereas in Tamil Nadu State Health Transport Department the Superintendent posts, which come under Tamil Nadu Ministerial Service are drawn from the Directorate of Public Health and Preventive Medicine Department and the Superintendent posts are filled by promotion. Further the Superintendent posts forms the base and renders the official services to the extent of an effective executive functioning in the hierarchy of administration as a whole. The duties and responsibilities of an Office Superintendent are wide, elaborate and manifold and cannot be compared with the Chargeman now re-designated as Supervisor under the technical side.
5.The petitioner is comparing the Supervisory posts with that of Office Superintendent. The Supervisor post to which the petitioner belongs to the Ministerial cadre. The adhoc rules governing the Supervisor post is a promotional post from the Junior Assistant, Assistant and then as Superintendent. Generally, Junior Assistant are selected through competitive exams conducted by Tamil Nadu Public Service Commission and must possess basic minimum qualification of SSLC passed, whereas the Supervisor post to which the petitioner https://www.mhc.tn.gov.in/judis belongs is a feeder category from Fitter Special posts. The Page 7 of 14 W.P.No.1861 of 2015 selection is through Employment Exchange. The petitioner was initially appointed as Helper with SSLC qualification. Subsequently promoted as Fitter Grade – I, Fitter Special and Foreman which is now re-designate as Supervisor. The petitioner was basically ITI holder in the trade motor mechanic vehicle. The duty of the Supervisor in Tamil Nadu State Health Transport Department is to service the vehicles of Health and Family Welfare Department and to attend the repairs of off road vehicles. The method of selection, qualification and duties and responsibilities attached to the post of Superintendent in the Tamil Nadu Ministerial Service are entirely different to that of Supervisor in the Technical side. Hence there is no justification in the plea of the petitioner seeking equal pay sanctioned to the post of Superintendent.
6.It is submitted that the duties, functions and responsibilities of Supervisor cadre are different in various departments and Government Offices. The petitioner has said that the supervisory posts in the Police and Jail Departments are drawing higher pay and higher Grade pay. The Sub Inspectors in the Police and the Personnel in Fire Service Department are prone to attack and highly risky jobs and cannot be compared to that of Supervisors in Tamil Nadu State Health Transport Department which are not risky jobs. Hence there is absolutely no justification in the plea of the petitioner, seeking equal pay with that of the said posts.
It may be submitted that the Hon'ble Supreme Court has also https://www.mhc.tn.gov.in/judis Page 8 of 14 W.P.No.1861 of 2015 accepted that equal pay could not be claimed when the duties and responsibilities attached to different posts are not similar. The Hon'ble Supreme Court has observed in Hukum Chand Gupta Vs Director General, I.C.A.R and others in C.A.No.3580 of 2009 dated 25.09.2012 MANU/SC/0970/2012 that the persons holding posts with the same nomenclature with different duties and responsibilities need not have same scales of pay. The observation of the Hon'ble Supreme Court in this connection, would be relevant to the case in hand.
19. We are also not inclined to accept the submission of the appellant that there can be no distinction in the pay scales between the employees working at Headquarters and the employees working at the institutional level. It is a matter of record that the employees working at Headquarters are governed by a completely different set of rules. Even the hierarchy of the posts and the channels of promotion are different. Also, merely because any two posts at the Headquarters and the institutional level have the same nomenclature, would not necessarily require that the pay scales on the two posts should also be the same. In our opinion, the prescription of two different pay scales would not violate the principle of equal pay for equal work. Such action would not be arbitrary or violate Articles 14, 16 and 39D of the Constitution of India. It is for the employer to categorize the posts https://www.mhc.tn.gov.in/judis and to prescribe the duties of each post. There can not Page 9 of 14 W.P.No.1861 of 2015 be any straitjacket formula for holding that two posts having the same nomenclature would have to be given the same pay scale. Prescription of pay scales on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts. Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. Neither the Central Administrative Tribunal nor a Writ Court would normally venture to substitute its own opinion for the opinions rendered by the experts. The Tribunal or the Writ Court would lack the necessary expertise undertake the complex exercise of equation of posts or the pay scales. 19-A. In expressing the aforesaid opinion, we are fortified by the observations made by this Court in State of Punjab Vs. Surjit Singh.[4] In this case, upon review of a large number of judicial precedents relating to the principle of equal pay for equal work, this Court observed as follows:
19Undoubtedly, 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 https://www.mhc.tn.gov.in/judis equal pay for equal work has no mechanical Page 10 of 14 W.P.No.1861 of 2015 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..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 https://www.mhc.tn.gov.in/judis responsibilities make a difference. Thus normally the Page 11 of 14 W.P.No.1861 of 2015 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 regard. 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. (Emphasis supplied)
6.In view of the fact that the petitioner belongs to the technical post and the comparison made by him falls under the Ministerial service, the very comparison is unacceptable and, therefore, there is no reason whatsoever to consider the claim of the Writ Petitioner for enhancement of grade pay. It is pertinent to note that the duties and responsibilities attached to the post of Chargeman (Electrical) is service of vehicles of Health and Family Welfare Department and to attend repairs of off road vehicles. However, the duties and responsibilities attached to the post of Superintendent in Tamil Nadu Ministerial Service is relating to the official services in the establishment. Thus, the comparison made is un-acceptable and the post cannot be construed as equivalent categories. Thus, the petitioner has not made any acceptable ground for the purpose of https://www.mhc.tn.gov.in/judis Page 12 of 14 W.P.No.1861 of 2015 considering the relief and accordingly this Writ Petition stands dismissed.
No costs.
21.07.2022 ep/sha Index : Yes Speaking order : Yes To
1.The Principal Secretary to Government, Finance (CMPC) Department, Fort St.George, Chennai – 600 009.
2.The Director, Tamil Nadu State Health Transport Department, Chennnai – 600 032.
https://www.mhc.tn.gov.in/judis Page 13 of 14 W.P.No.1861 of 2015 S.M. SUBRAMANIAM, J.
ep W.P.No.1861 of 2015 21.07.2022 https://www.mhc.tn.gov.in/judis Page 14 of 14