Madras High Court
Tamil Nadu Government Engineering vs Workmen Reported In 2007(1) Scc 408 on 5 August, 2008
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2008
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.No.28274 of 2006 (T)
(O.A.No.3266 of 1996)
Tamil Nadu Government Engineering
College Technical Employees Welfare
Association, rep. by its
General Secretary,
Mr.R.Socrates ... Petitioner
v.
1. The Secretary to Government,
State of Tamil Nadu,
Science and Technology Department,
Fort St. George, Madras-9.
2. The Director of Technical Education,
Madras-25. ... Respondents
This petition came to be numbered by transfer of O.A.No.3266 of 1996 on the file of the Tamil Nadu Administrative Tribunal praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the second respondent in Lr.No.O.Mu.104723/A3/95, dated 09.11.95, quash the same and direct the respondents to allow the Scale of Pay of Rs.1200-2040 to the Selection Grade Artisans Grade-2, working in the Government Engineering Colleges in the State of Tamil Nadu.
For Petitioner : Mr.K.H.Ravikumar
For Respondents : Mr.C.Ramesh, Addl. Government Pleader
O R D E R
The Tamil Nadu Government Engineering College Technical Employees Welfare Association is the petitioner in this Writ Petition. The request to fix the pay scale for the post of Artisans, Grade II, has been rejected by the Director of Technical Education, Chennai, second respondent, vide order dated 09.11.1995, which is impugned in this Writ Petition.
2. Facts of this case are as follows:
The petitioner, a registered Association, represents Technical Employees working in the Government Engineering Colleges in Coimbatore, Tirunelveli, Salem, Karaikudi, Vellore and Bargur. According to the petitioner, Artisans Grade II are paid ordinary Grade Scale of pay of Rs.950-1500. The Selection Grade Scale of Pay for the above said ordinary Grade Scale is Rs.1200-2040, as per G.O.Ms.No.304, Finance (pay Commission) Department, dated 28.03.1990. However, Artisans Grade II of the above said Government Engineering Colleges are paid Selection Grade Scale of Rs.1100-1660 only. Therefore, the persons working in the capacity of Selection Grade Artisans Grade II working in the above said Government Engineering Colleges have made representations to the Government that they may also be allowed the Selection Grade Scale of pay of Rs.1200-2040. On receipt of the said representations, the Government of Tamil Nadu has sent a reply to the Director of Technical Education, Chennai, dated 01.07.1994, stating that when the promotion to the post of Artisan Grade-I carries the Ordinary Grade Scale of pay of Rs.1100-1660, and therefore, the Selection Grade Scale of Artisan Grade-II is restricted to Rs.1100-1660 and Artisans Grade-II are not eligible for the Selection Grade Scale of Pay of Rs.1200-2040. Accordingly, the Director of Technical Education, Madras, in his letter, dated 09.11.1995, passed an impugned order, stating that the Government had rejected the proposals for sanction of Selection Grade Scale of Pay of Rs.1200-2040 to Artisan Grade-II. Aggrieved by the same, the petitioner has preferred the present Writ Petition.
3. Assailing the impugned order, the petitioner has submitted that under the Special Rules for the Tamilnadu Technical Educational Subordinate Service, post of Artisan Grade-II can be filled up by Promotion from any posts in the service on a lower scale of pay or by Direct Recruitment, or by Recruitment by transfer for any other service. According to the petitioner, the promotions are made to the post of Artisan Grade-I from the following categories:-
(1)Laboratory Assistant (2)Mechanic (3)Fitter (4)Carpenter (5)Electrician (6)Plumber (7)Electrician-cum-Lineman (8)Maistry (9)Armature Winder (10)Sheet metal Worker]
4. The petitioner has further contended that all the above said categories carry the Ordinary Grade Scale of pay of Rs.950-1500 and that they are allowed the Selection Grade Scale of pay of Rs.1200-2040. When their Selection Grade Scale of pay to the above posts is not restricted to Rs.1100-1660, which is the Ordinary Grade Scale of Artisan Grade-I, restricting the Selection Grade Scale to Artisan Grade-II alone to Rs.1100-1660 is discriminatory. Since all the feeder categories to the post of Artisan Grade-I are allowed the Selection Grade Scale of pay of Rs.1200-2040, Artisan Grade-II post is also entitled for the Selection Grade Scale of pay of Rs.1200-2040. The denial of the said Scale of pay to Artisan Grade II is violative to Articles 14 and 15 of the Constitution of India.
5. It is further submitted that though it is stated that the Artisan Grade I is the promotional post for Artisan Grade II, no promotions are made to Artisan Grade I from the post of Artisan Grade II. Therefore, when no promotions are made from the category of Artisan Grade II to Artisan Grade I, denial of Selection Grade scale of pay of Rs.1200-2040 to Artisan Grade II on the ground that the promotional post of Artisan Grade I carries the Ordinary Grade Scale of Rs.1100-1660 is arbitrary and illegal.
6. The Government in their counter affidavit have submitted that there are two grades in Artisan Post in Engineering Colleges, viz., (i) Artisan Grade I and (ii) Artisan Grade II. Scales of pay for the above posts are mentioned below as ordered in G.O.Ms.No.576, Finance (P.C.), dated 01.08.1992.
Name of the post Scale of Pay (O.G.) Artisan Grade I Rs.1,100 1,660 Artisan Grade II Rs.950 1,500 Employees working as Artisan Grade I and Artisan Grade II would normally be permitted to move on to the Selection Grade after completion of ten years service in the posts concerned. The scale of pay for the above posts in the Selection Grade, as per G.O.Ms.No.304, Finance (P.C) Department, dated 28.03.1990, is as follows:
Name of the post Scale of Pay in the Selection Grade Artisan Grade I Rs.1,320 2,040 Artisan Grade II Rs.1,100 1,660
7. According to the respondents, in Government Polytechnics only one grade of the post is in existence, ie., Artisan Grade II. There is no Artisan Grade I in Government Polytechnics. The scale of pay for the post of Artisan Grade II in the Ordinary Grade and Selection Grade in Government Polytechnics is as follows:
Ordinary : Rs.950 1,500 Selection Grade : Rs.1,200 2,040
8. The respondents in their counter affidavit have further submitted that the employees working under common categories in Government Engineering Colleges and Government Polytechnics are considered as separate units of the respective establishment of the Engineering Colleges/Polytechnics. The Principal of the respective Engineering College/Polytechnic is the competent authority for making appointments and promotions to those working under common categories of posts, such as Artisan Grade-I and Artisan Grade-II etc. The appointments and promotions are restricted from among the employees working under the common categories of the posts in the particular Engineering College or Polytechnic, as the case may be. Therefore, each and every Engineering college or Polytechnic is considered as a separate unit for their appointments and promotions under the common category posts such as Artisan Grade-I and Artisan Grade-II etc. Eventhough there are several posts under the common categories in the Engineering Colleges and Polytechnics, the employees working under these common categories will not normally be transferred from one Engineering College or Polytechnic, to another and employees working under these common categories in Engineering College or Polytechnic will not also be considered for promotion in another Engineering College or Polytechnic, since all the institutions have their own status of independency. Further, the duties and responsibilities of a Grade-II Artisan working in Government Engineering Colleges differ from the duties and responsibilities of Grade II Artisan working in Government Polytechnics and they cannot be considered on par with Grade-II Artisan of Engineering Colleges.
9. It is further submitted that Grade II Artisan working in Engineering College with time scale of pay Rs.950-1500 has promotional opportunity to become a Grade I Artisan with scale of pay Rs.1,100 1,660 in the same Engineering College, whereas, the the Artisan Grade II working in Government Polytechnics have no such promotional opportunity elsewhere. Therefore, the Selection Grade Scale for the ordinary grade scale of pay of Rs.950-1500 is restricted as Rs.1,100 to 1,660, which is the scale of pay prescribed for the next higher Grade I in Artisan post in the Government Engineering Colleges. In respect of Artisan Grade II working in Government Polytechnics their selection grade scale for the ordinary grade scale of pay of Rs.950-1500 is prescribed as Rs.1200-2040, which is the corresponding scale of pay prescribed for such similar posts, which carry the same identical scale of pay, as per G.O.Ms.NO.304, Finance (P.C) Department, dated 28.03.1990. Therefore, Selection Grade scale of pay for Artisan Grade II, which carries an ordinary grade scale of pay of Rs.950-1500 is prescribed as Rs.1,100-1,660 in Government Engineering Colleges and as Rs.1,200-2,040 in Government Polytechnics respectively, for the post of Artisan Grade II as per the above Government Orders.
10. The promotion to the post of Artisan Grade I is made from the following Categories, viz.,
1. Laboratory Assistant
2. Mechanic
3. Fitter
4. Carpenter
5. Electrician
6. Plumber
7. Electrician-cum-Lineman
8. Maistry
9. Armature Winder
10.Sheet metal Worker
11.Artisan Grade I Qualifications required for promotion are given below:
Class and Category
7. Artisan Class I Method of recruitment Promotion, Direct Recruitment and Recruitment by transfer Qualifications
1. A Technical High School Certificate in the appropriate trade awarded by the State Board of Technical Education & Training, Tamil Nadu, or 1a. A trade certificate in the appropriate workshop trade issued by the Director of Industries and Commerce, Chennai or the Director of Employment and Training, Chennai and 1b. Practical Experience in a recognised workshop for a period of not less than two years; or
3. (a) A pass in VIII Standard in a recognised School;
(b) Practical Experience in the concerned Trade, in a recognised workshop for a period of Not less than five years.
11. Therefore, the respondents have contended that the persons working in the above said category of posts alone will not be considered for promotion, unless they possess the practical experience in the concerned trade in a recognised workshop for a period of 'Not less than five years' besides the other qualifications required as stated above. It is further contended that opportunity of promotion to Artisan Grade I from Artisan Grade II depends upon the number of posts available in the concerned Engineering Colleges. The promotion to Artisan Grade I from the post of Artisan Grade II would be made as and when required depending upon the vacancy position.
12. The respondents have further submitted that the contention of the petitioner that there is no specific provision for promotion from Artisan Grade-II is not correct, as there are sufficient provisions in the Special Rules for Tamil Nadu Technical Educational Subordinate Service for the promotion to the post of Artisan Grade-I. Heard the learned counsel appearing for the parties and perused the materials available on record.
13. The order of the Government communicated to the Director of Technical Education, Madras, in their letter, dated 1st July 1994, reads as follows:
"I am directed to invite your attention to the references cited wherein you have requested the Government to clarify whether the Selection Grade Artisan Grade II in Engineering Colleges may be allowed Rs.1200-2040 as per Annexure I of G.O.Ms.No.304, Finance (PC) Department, dated 28.03.1990 as was done in the case of the post of Artisan Grade II in Government Polytechnic. In this connection, I am to state that the selection Grade Artisan Grade II in Engineering Colleges are eligible for the scale of pay of Rs.1100-1660, since the promotional post of Artisan Grade I is placed at Rs.1100-1660. I am therefore to inform you that your request to allow Rs.1200-2040 to Selection Grade Artisan Grade II in Engineering Colleges cannot be complied with."
14. The said decision of the Government communicated by the Director of Technical Education, Chennai, in their letter, dated 09.11.1995, is impugned in this Writ Petition. The relief sought for in the Writ Petition is for a direction to the respondents to allow the scale of pay of Rs.1200-2040/- to the Selection Grade Artisans Grade-II, working in the Government Engineering Colleges in the State of Tamil Nadu.
15. The reason assigned in the impugned order is that when the ordinary scale of Artisan Grade I in Government Engineering Colleges is fixed at Rs.1,100/- and therefore, the Selection Grade Scale of Pay in the lower post, ie., Artisan Grade II in the Engineering Colleges cannot be more than that of the ordinary scale of pay fixed for the promotional post. Whereas in the case of polytechnics, though the ordinary scale of pay for Artisans Grade II is 950-1500. There is hardly any promotional avenue to the post of Artisan Grade- I. Therefore, the Government have permitted the Selection Grade Scale of pay at Rs.1200-2040 on par with the other categories of posts stated supra. Further, the respondents have also stated that the duties and responsibilities of Grade II Artisan in Government Engineering Colleges differ from that of persons working in the same Grade, in Polytechnics. Though the above said reason is not cited in the impugned order, the said contention cannot be ignored as there is no rebuttal from the petitioner. The reasons assigned cannot be termed as arbitrary.
16. In a recent decision in Indian Drugs and Pharmaceuticals vs. Workmen reported in 2007(1) SCC 408, the Supreme Court held that orders for creation of posts, appointments on these posts, regularisation, fixing pay scales, continuance in service, promotions etc. are all legislative or executive powers and it is improper for judges to steps into the sphere except in a rare and exceptional case. The court must exercise judicial restraint in this connection and not to encroach into the executive or legislative domain.
17. The Apex court has restated the above legal principle in yet another decision in S.C.Chandra v. State of Jharkhand reported in 2007(8) SCC 279, where the court held that, "the theory of separation of powers, first propounded by French philosopher Montesqhan in his book. The spirit of laws, still broadly holds the field in India. Fixing pay scales by court by applying the principles equal pay for equal work upsets the high constitutional principles of separation of powers the organs of state. Granting pay scale is purely an executive function and hence courts should not interfere with the same. 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 an extensive evidence.
18. In view of the decisions of the Supreme Court, it is purely the prerogative of the executive to take a decision in respect of fixing of pay to a particular post. Therefore, this Court would not delve into that area and in the facts of the instant case, it is not one of the rare and rarest case, where the Court's intervention is required.
19. As the respondents have set out adequate reasons for fixation of Selection Grade Scale of pay in Government Engineering Colleges, it would be not fair on the part of this Court to go into that sphere and issue any directions. However, having regard to the introduction of the 6th Pay Commission, liberty is given to the petitioner-association to make a fresh representation to the Government and the same shall be considered on merits.
20. In the result, the Writ Petition is dismissed. No costs.
05.08.2008 Index :Yes skm To
1. The Secretary to Government, State of Tamil Nadu, Science and Technology Department, Fort St. George, Madras-9.
2. The Director of Technical Education, Madras-25.
S. MANIKUMAR, J.
skm W.P.No.28274 OF 2006 05.08.2008