Kerala High Court
T.V.Sabu vs Secretary on 23 January, 2020
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
WP(C).No.29097 OF 2017(J)
PETITIONER/S:
1 T.V.SABU
INSPECTOR, SUB REGIONAL OFFICE, COIR BOARD,
KANNUR.
2 A.N.SABU
INSPECTOR, SUB REGIONAL OFFICE, COIR BOARD,
KAVARATHY, LAKSHA DEEP.
3 B.SUNIL KUMAR
INSPECTOR, REGIONAL OFFICE (CMS) COIR BOARD,
KALAVOOR, ALAPPUZHA.
4 JOHNSON P.J.
MECHANIC GRADE-I, HINDUSTAN COIR, KALAVOOR,
ALLEPPEY.
5 A.J.MANOJ KUMAR
TECHNICAL ASSISTANT (SPINNING), N.C.T. & D.C.,
COIR BOARD, KALAVOOR, ALAPPUZHA.
6 S.MURALEEDHARAN
MECHANIC OPERATOR, REGIONAL EXTENSION CENTER,
COIR BOARD, THANCHAVOOR.
BY ADVS.
SRI.P.PARAMESWARAN NAIR
SRI.K.ARJUN VENUGOPAL
SMT.V.A.HARITHA
SRI.JEEVAN RAJEEV
SRI.P.A.MOHAMMED SHAH
SMT.P.M.MAZNA MANSOOR
SMT.SREELATHA PARAMESWARAN NAIR
SRI.C.R.SYAMKUMAR
SRI.SOORAJ T.ELENJICKAL
SMT.SANDHYA R.NAIR
WP(C).No.29097 OF 2017(J)
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RESPONDENT/S:
1 SECRETARY, COIR BOARD
COIR BOARD, 'COIR HOUSE', M.G.ROAD, ERNAKULAM,
KOCHI-682016.
2 THE UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF
INDIA, MINISTRY OF MICRO, SMALL & MEDIUM
ENTERPRISES, UDYOG BHAWAN, NEW DELHI-110001.
3 MINISTRY OF FINANCE
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF
INDIA, PARLIAMENT BUILDING, NORTH BLOCK, NEW
DELHI-110001.
R1-2 BY SMT.O.M.SHALINA, CGC
R1 BY ADV. SRI.JAISHANKAR V.NAIR CGC
R2-3 BY ADV. SRI.JAISHANKAR V.NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.29097 OF 2017(J)
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JUDGMENT
Petitioners, who have been working in the posts of Inspector, Mechanic Grade-I, Technical Assistant (Spinning) and Machine Operator respectively under the Coir Board, are seeking the benefit of Ext.P1 judgment and for a direction to the respondents to revise their pay to the scale of Rs.5000-8000 with effect from the date, on which they were promoted to the grade of Assistants and to fix their pay accordingly.
2. The case of the petitioners is that the employees in the technical stream under the Coir Board are discriminated while implementing the 5th Central Pay Commission revision granting higher pay to those in the administrative and marketing stream. At the time of filing the writ petition, petitioners have been drawing pay in the pay band of Rs.5200-20200 with WP(C).No.29097 OF 2017(J) ..4..
Rs.2,400/- Grade Pay.
3. It is stated that the 5th Central Pay Commission (CPC) had recommended revision of scale of pay in the case of the Assistants, Senior Stenographers, Hindi Translators and Upper Division Clerks working in the administrative stream, who were drawing pay in the scale of Rs.1400-2300, to Rs.5000-8000. It is stated that the replacement scale of 1400-2300, under the 5th CPC was 4500-7000. Based on the recommendations of 5th CPC, the Coir Board had recommended revised higher scale of pay of Rs.5000-8000 to the posts like Assistant/Senior Stenographer, Showroom Manager Grade-III etc, in the administrative stream. It is stated that some of the employees under the 1st respondent working as Assistants, Senior Stenographers and Show Room Managers had approached this Court in WP(C) No.26926 of 2005 seeking implementation of the recommendations made by the Coir Board. WP(C).No.29097 OF 2017(J) ..5..
Coir Board was waiting for approval from Central Government for implementation of the proposal. As the Government did not pass any order on the proposal even after interim orders were passed, this Court, in Ext.P1 judgment, held that the proposal made by the Coir Board shall be deemed to have approval of the Central Government and directed implementation of the same with consequential benefits. It is stated that though Coir Board had taken up the matter, it was finally concluded in Ext.P2 order dated 05.08.2013 of the apex court dismissing the Special Leave Petition filed against the judgment of this Court, affirming Ext.P1 judgment. The petitioners pointed out that the Government had implemented the directions in Ext.P1 judgment in respect of the petitioners therein; but denied the same to the employees like the petitioners herein in the Technical stream. It is stated that though the WP(C).No.29097 OF 2017(J) ..6..
petitioners submitted representations like Ext.P3 dated 13.06.2016, no action was taken. According to the petitioners, they are also working in the Grade of Assistants, attending duties similar to that of Assistants in the administrative wing and therefore, there is no reason to deny the extension of benefit of Ext.P1 judgment to the employees like the petitioners.
4. The respondents have filed a counter affidavit. According to them, there are different streams of employees under the 1st respondent. The petitioners are employees in the technical stream and there was no recommendation for enhancement of pay scale for those in the technical stream by the 5th CPC. In respect of posts in the administrative stream, though proposal for grant of higher scale as per Ext.R1(c) proposal dated 02.02.1999, in tune with Ext R1(b) notification, was forwarded, WP(C).No.29097 OF 2017(J) ..7..
since the Ministry of Finance did not grant approval of the same, it was not implemented. The W.P.(C) was filed by the employees in administrative stream at that stage. It is stated that the recommendations of the 5th Central Pay Commission for revision of pay are directly applicable only to those in the Central Government Departments. The Government of India, Ministry of Finance had, as per Ext.R1(a) order issued on 02.12.1997, permitted autonomous bodies to adopt the Central Pay Scales as per the Pay Commission recommendations subject to certain conditions. It is stated that the recommendations of the 5 th CPC, which were contained in Part A of the gazette notification only, were applicable to the employees of Coir Board, which is only a statutory body. It is stated that the Government of India had approved certain recommendations of the 5th Central Pay WP(C).No.29097 OF 2017(J) ..8..
Commission for grant of higher scale of pay for some common categories, which were notified in Part B of the gazette notification-Ext R1(b). It is stated that separate sanction from the Ministry of Finance is required for the Coir Board for granting higher scale of pay. It is further stated that based on Ext.R1(b), the Coir Board had identified some of the categories of staff under it for grant of higher pay scale, which included Assistants (Administrative and Marketing), Senior Stenographer, Hindi Translator, UDC with Special Pay etc., who were in the pre-revised scale of 1400-2300. It is stated that the posts in the technical stream do not come under Part B of the notification. The 1st respondent took up Ext.R1(c) proposal for grant of higher scale for approval from the Government of India; and based on the directions in Ext.P1 judgment, the proposal was implemented in respect of the WP(C).No.29097 OF 2017(J) ..9..
posts mentioned therein.
5. Smt.O.M.Shalina, the learned Central Government Counsel pointed out that there are only 27 posts of Assistants in the administrative stream, as stated in para 1 of Ext.P1 judgment. Inviting attention to Ext.R1(b) notification, it is pointed out that the said notification is with respect to the office staff working in organizations outside the Secretariat and therefore, the petitioners, who claim to be in the Grade of Assistants working in the technical stream, are not covered by Ext.R1(b) or Ext.R1(c) orders. It is stated that even Ext.R1(b) is not directly applicable to the Coir Board and approval is necessary from government for extending the same. It is also pointed out that the posts of Inspector, Boiler Operator, Draughtsman, Dyeing Assistant, Machine Operator, Mechanic Grade-I and Technical Assistant (Spinning/Dyeing/Testing) WP(C).No.29097 OF 2017(J) ..10..
in the pay scale of Rs.1400-2300 are coming under the technical stream. It is submitted that the Rubber Board has implemented higher pay only with respect to staff in administrative and marketing streams and not in respect of technical stream. It is their definite case that the direction of this Court does not cover the posts occupied by the petitioners.
6. The learned counsel for the petitioners, relying on the judgment in State of Uttar Pradesh & Others v. Arvind Kumar Srivastava and Others [2014 KHC 4682], argued that petitioners are entitled to pay parity with the Assistants and higher scale of pay ought to have been implemented in the case of the petitioners, who are also working in the Grade of Assistants.
7. From the pleadings, it is evident that the petitioners in this writ petition are not holding posts similar to the posts held by the WP(C).No.29097 OF 2017(J) ..11..
petitioners in Ext.P1 judgment in WP(C) No.26926 of 2005. Admittedly, the petitioners are working in the technical stream. The petitioners in Ext.P1 judgment were working in the administrative/marketing stream. It is also seen that the common categories mentioned in Ext.R1(b) are all under the administrative stream. The respondents have stated that they submitted the proposal in tune with Part B of the notification, identifying similar posts under it for higher scale of pay. In Ext.P1 judgment, this Court had only directed implementation of the proposal. When that proposal does not relate to the employees like petitioners, Ext.P1 judgment would not be applicable to the petitioners herein, who are admittedly working in the technical stream.
8. The petitioners claim that their duties and responsibilities are similar and therefore, they are entitled to pay parity. But, there is WP(C).No.29097 OF 2017(J) ..12..
no material to show that the duties and responsibilities of those in technical stream and administrative stream are similar. Parity in pay cannot be claimed just because the petitioners were in the same scale of pay or that they are in the grade of Assistants. In the absence of material to substantiate, the decision of the employer has to prevail. In this context, it is relevant to note the dictum laid down in the judgment in Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91, wherein it was held as follows:
"7. xxxx 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 judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such WP(C).No.29097 OF 2017(J) ..13..
differentiation will not amount to discrimination.
xxxx
11. xxxxx The differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less -- it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived malafide either in law or in fact."
9. In Union of India v. T.V.L.N. Mallikarjuna Rao [(2015) 3 SCC 653], the dictum laid down in Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 (1) SLR 827] was reiterated, wherein it was held the principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. It was also reiterated that the classification made by a body of experts after full study and WP(C).No.29097 OF 2017(J) ..14..
analysis of the work should not be disturbed except for strong reasons which would indicate the classification was unreasonable. It was held that inequality of the men in different groups excludes applicability of the principle of equal pay for equal work to them. It was held that the Data Entry Operators Grade A were not entitled for scale of pay of Rs.1350-2200 merely on the basis of their qualifications or for the fact that they have completed their period of requisite service.
10. In Hukum Chand Gupta v. ICAR [(2012) 12 SCC 666], the Apex Court held that merely because any two posts at the headquarters and at the institutional level have the same nomenclature, it would not require that the pay scales of the two posts should also be the same. It was held that the prescription of two different pay scales would not violate the principle of equal pay for equal work and it would not be WP(C).No.29097 OF 2017(J) ..15..
arbitrary. It was reiterated that it is for the employer to categorize the posts and to prescribe the duties of each post and that there cannot 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 requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts and it is a very complex process. It was held:
"Even if, the two posts are 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."
11. The petitioners have not substantiated their case that they are performing the same or similar duties or that they are shouldering WP(C).No.29097 OF 2017(J) ..16..
equal or comparable responsibilities as that of the petitioners in Ext.P1 judgment. Admittedly, they are not holding the posts similar to the posts held by the petitioners in Ext.P1 judgment. In the above circumstances, this Court would not, under Article 226 of the Constitution, direct the respondents to extend the revised enhanced scale of pay as given to those in the administrative stream. The writ petition is dismissed accordingly.
Sd/-
P.V.ASHA JUDGE Bka/25.01.2020 WP(C).No.29097 OF 2017(J) ..17..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1- TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.26926/2005 BEFORE THE HON'BLE HIGH COURT OF KERALA DATED 22/01/2008.
EXHIBIT P2- TRUE COPY OF THE ORDER SLP(CIVIL) NO.
(S)18963/2010 DATED 05/08/2013 OF THE HON'BLE SUPREME COURT.
EXHIBIT P3- TRUE COPY OF ONE OF THE REPRESENTATION FILED BY THE PETITIONERS DATED 13/06/2016.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE OM F.NO.7(34)/E.III-
A/97 DATED 02.12.1997 ISSUED BY THE MINISTRY OF FINANCE.
EXHIBIT R1(B) TRUE COPY OF THE GAZETTE OF INDIA EXTRAORDINARY (PART-B) (REVISED PAY SCALES FOR CERTAIN COMMON CATEGORIES OF STAFF).
EXHIBIT R1(C) TRUE COPY OF THE PROPOSAL DATED 02.02.1999 OF COIR BOARD FOR GRANTING THE HIGHER PAY SCALE TO THE IDENTIFIED CATEGORIES OF STAFF UNDER COIR BOARD.