T.Elamathiyan v. The State of Tamil Nadu, rep.by its Secretary to Government,Department of School Education,Fort St.George, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.3.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.19224 of 19981.T.Elamathiyan2.T.Ashok3.A.Manoharan4.S.Rajarajeswari5.S.Pugalendhi6.G.Niarudavanan7.C.Sudhakar8.R.Jeevabarathi .. Petitioners-vs-1.The State of Tamil Nadu, rep.by its Secretary to Government, Department of School Education, Fort St.George, Chennai-9.

The Director of School Education, Chennai-6.

The District Educational Officer, Tanjore, Tanjore District.

The Correspondent/Secretary, Sri K.G.S.Hr.Sec. School, Aduthurai, Tanjore District-612 101.

The Correspondent/Secretary, St.Joseph's Girls' Hr.Sec. School, Kumbakonam Taluk, Thanjavur District.

The Correspondent/Secretary,T.A.Hr.Sec. School, Thiruvidaimarudur, Thanjavur District. https://hcservices.ecourts.gov.in/hcservices/

The Correspondent/Secretary, Crescent Hr.Sec. School, Avaniapuram, Aduthurai (via)Thiruvidaimarudur Taluk, Thanjavur District. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing therespondents to fix the scale of pay of the petitioners on par withthat of the bifurcated instructors/P.G. Teachers based on theprinciple of "Equal pay for Equal work" atleast from the respectivedate of fixing the regular scale of pay pursuant to G.O.No.712,dated 28.5.1990, G.O.No.967, dated 16.10.1992 and G.O.No.834, dated23.9.1994 for the petitioners. For petitioners: Mr.Saravanakumar for M/s.La LawFor respondents: Mr.A.Arumugam, Spl.G.P.for R1 to R3 Mr.K.Chandrasekaran for R6*****

O R D E R The petitioners have filed the writ petition seeking for adirection to the respondents to fix the scale of pay of thepetitioners on par with that of bifurcated Instructors/P.G.Teachersbased on the principle of ''Equal Pay for Equal Work" from the dateof fixing their regular scale of pay pursuant to G.O.Ms.No.712 dated28.5.1990 and G.O.Ms.No.967 dated 16.10.1992 and G.O.Ms.No.834,dated 23.9.1994.2. The writ petition was admitted on 28.1.2003. Pending thewrit petition, this Court declined to grant any interim relief.3. The case of the petitioners was that the teachers working in High Schools with diversified courses with subjects likeEngineering, Commerce, Agriculture and Home Science were allowed tobe utilised as vocational Instructors in Higher Secondary Courses. Therefore, G.O.Ms.No.1719, Education, dated 14.9.1978 was passedpermitting the utilisation of erstwhile bifurcated staff to teach inthe Higher Secondary Classes.

The Government also sanctioned part-time teachers to teach vocational education in the Higher SecondaryClasses. During the year 1978 when the Higher Secondary System wasintroduced, P.G.Teachers who were appointed under general streamwere regularised. But, however, those who were teaching vocational https://hcservices.ecourts.gov.in/hcservices/ subjects and were appointed as Part-time Instructors, were notregularised till 1990. After several representations, G.O.Ms.No.712,School Education, dated 28.5.1990 was issued wherein 800 Part-timeVocational Instructors were given the regular scale of pay. Again byG.O.Ms.No.967, School Education, 537 part-time vocationalInstructors were converted into full-time vocational Instructors. Thereafter, by G.O.Ms.No.834, School Education, dated 23.9.1994, 603part-time instructors were made as full-time instructors. All ofthem were put in the minimum basic pay of Rs.1,400/- p.m.4.

It was at this juncture, teachers who were affected byG.O.Ms.No.834, dated 23.9.1994 challenged the said G.O. Thepetitioners who were absorbed as vocational Instructors were alsopermitted to teach vocational subjects like Commerce, Accountancy, Agriculture and Engineering etc. But though higher scale of pay wasfixed for the erstwhile bifurcated instructors, the petitioners aregiven a consolidated pay. Regular scales of pay were fixed only byG.O.Ms.No.712, dated 28.5.1990 and G.O.Ms.No.967, dated 16.10.1992and G.O.Ms.No.834, dated 23.9.1994. Even when the scale of pay wasfixed, it was far lower than the scale of pay paid to the others whowere working as P.G.Teachers. While the basic pay of those teacherswere fixed as Rs.1400/-, the basic pay of P.G.Teachers were fixed asRs.1820/-. Therefore, the petitioners have filed the present writpetition seeking for pay on par with the bifurcatedteachers/P.G.Teachers on the basis of 'equal pay for equal work'.The petitioners also have elaborately set out that the nature ofteaching was almost same and there should not be any discriminationin the matter of fixation of pay for the petitioners.5.

The petitioners placed reliance upon the judgment of the Central Administrative Tribunal relating to Puducherry Instructorsin O.A.(P) No.38 of 1994, dated 19.3.1999. In that O.A., the Puducherry Government was given direction to consider the case ofthe petitioners for higher scale on par with the Post GraduateTeacher. The appeal by the Puducherry Government was also rejectedby a Division Bench of this Court by its order dated 17.12.2003passed in W.P.No.19904 of 1999. Pursuant to the order passed by this Court, the Government of Puducherry issued G.O.Ms.No.75, ChiefSecretary (Education) dated 10.7.2006 and implemented higher scalefor those persons.6. However, it must be stated that the concept of equal pay forequal work cannot be mechanically applied by the courts. It requiresrelevant consideration by the appropriate Government and it alsoinvolves a scientific study with reference to the criteria forpayment.

In this context, it is necessary to refer to the decisionof the Supreme Court in S.C. Chandra and others -vs- State of Jharkhand and others reported in [2007 (8) SCC 279] wherein M.Katju, J., in his concurring judgment, held that grant of pay scales https://hcservices.ecourts.gov.in/hcservices/ is an executive or legislative function and not a judicial function. The passages found in paragraphs 24 to 28 and 33 to 35 may beusefully reproduced below:-Para 24. The principle of equal pay for equal work waspropounded by this Court in certain decisions in the1980s e.g. Dhirendra Chamoli v. State of U.P.2,Surinder Singh v. Engineer-in-Chief, CPWD3, RandhirSingh v. Union of India4, etc. This was done byapplying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli case2 this Court grantedto the casual, daily-rated employees the same payscale as regular employees. Para 25. It appears that subsequently it was realisedthat the application of the principle of equal payfor equal work was creating havoc.

All over Indiadifferent groups were claiming parity in pay withother groups e.g. government employees of one Statewere claiming parity with government employees ofanother State. Para 26. Fixation of pay scale is a delicate mechanismwhich requires various considerations includingfinancial capacity, responsibility, educationalqualification, mode of appointment, etc. and it has acascading effect. Hence, in subsequent decisions ofthis Court the principle of equal pay for equal workhas been considerably watered down, and it has hardlyever been applied by this Court in recent years. Para 27. Thus, in State of Haryana v. Tilak Raj it washeld that the principle can only apply if there iscomplete and wholesale identity between the twogroups. Even if the employees in the two groups aredoing identical work they cannot be granted equal payif there is no complete and wholesale identity e.g. adaily-rated employee may be doing the same work as aregular employee, yet he cannot be granted the samepay scale.

Similarly, two groups of employees may bedoing the same work, yet they may be given differentpay scales if the educational qualifications aredifferent. Also, pay scale can be different if thenature of jobs, responsibilities, experience, methodof recruitment, etc. are different. Para 28. In State of Haryana v. Charanjit Singh1discussing a large number of earlier decisions it washeld by a three-Judge Bench of this Court that theprinciple of equal pay for equal work cannot applyunless there is complete and wholesale identity https://hcservices.ecourts.gov.in/hcservices/ between the two groups. Moreover, even for findingout whether there is complete and wholesale identity, the proper forum is an expert body and not the writcourt, as this requires extensive evidence. Amechanical interpretation of the principle of equalpay for equal work creates great practicaldifficulties. Hence in recent decisions the SupremeCourt has considerably watered down the principle ofequal pay for equal work and this principle hashardly been ever applied in recent decisions.

Para 33. ''It may be mentioned that granting pay scales is apurely executive function and hence the court shouldnot interfere with the same. It may have a cascadingeffect creating all kinds of problems for the Government and authorities. Hence, the court shouldexercise judicial restraint and not interfere in suchexecutive function vide Indian Drugs &Pharmaceuticals Ltd. v. Workmen. Para 34. There is broad separation of powers under the Constitution, and the judiciary should not ordinarilyencroach into the executive or legislative domain. The theory of separation of powers, first propoundedby the French philosopher Montesquieu in his book TheSpirit of Laws still broadly holds the field in Indiatoday. Thus, in Asif Hameed v. State of J&K a three-Judge Bench of this Court observed (vide paras 17 to19): (SCC pp. 373-74)“17. Before adverting to the controversydirectly involved in these appeals we may have afresh look at the inter se functioning of thethree organs of democracy under our Constitution.

Although the doctrine of separation of powers hasnot been recognised under the Constitution in itsabsolute rigidity but the Constitution makershave meticulously defined the functions ofvarious organs of the State. Legislature, executive and judiciary have to function withintheir own spheres demarcated under the Constitution. No organ can usurp the functionsassigned to another. The Constitution trusts tothe judgment of these organs to function andexercise their discretion by strictly followingthe procedure prescribed therein. The functioningof democracy depends upon the strength andindependence of each of its organs. Legislatureand executive, the two facets of people’s will, they have all the powers including that of https://hcservices.ecourts.gov.in/hcservices/ finance. Judiciary has no power over sword or thepurse nonetheless it has power to ensure that theaforesaid two main organs of State functionwithin the constitutional limits.

It is thesentinel of democracy. Judicial review is apowerful weapon to restrain unconstitutionalexercise of power by the legislature andexecutive. The expanding horizon of judicialreview has taken in its fold the concept ofsocial and economic justice. While exercise ofpowers by the legislature and executive issubject to judicial restraint, the only check onour own exercise of power is the self-imposeddiscipline of judicial restraint.18. Frankfurter, J. of the U.S. SupremeCourt dissenting in the controversialexpatriation case of Trop v. Dulles11 observed asunder: (US pp.119-20)‘All power is, in Madison’s phrase, “of anencroaching nature”. … Judicial power isnot immune against this human weakness. Italso must be on guard against encroachingbeyond its proper bounds, and not the lessso since the only restraint upon it isself-restraint. …Rigorous observance of the differencebetween limits of power and wise exerciseof power—between questions of authority andquestions of prudence—requires the mostalert appreciation of this decisive butsubtle relationship of two concepts thattoo easily coalesce.

No less does itrequire a disciplined will to adhere to thedifference. It is not easy to stand aloofand allow want of wisdom to prevail, todisregard one’s own strongly held view ofwhat is wise in the conduct of affairs. Butit is not the business of this Court topronounce policy. It must observe afastidious regard for limitations on itsown power, and this precludes the Court’sgiving effect to its own notions of what iswise or politic. That self-restraint is ofthe essence in the observance of thejudicial oath, for the Constitution has notauthorised the judges to sit in judgment onthe wisdom of what Congress and the https://hcservices.ecourts.gov.in/hcservices/ Executive Branch do.’19. When a State action is challenged, thefunction of the court is to examine the action inaccordance with law and to determine whether thelegislature or the executive has acted within thepowers and functions assigned under the Constitution and if not, the court must strikedown the action.

While doing so the court mustremain within its self-imposed limits. The courtsits in judgment on the action of a coordinatebranch of the Government. While exercising powerof judicial review of administrative action, thecourt is not an appellate authority. TheConstitution does not permit the court to director advise the executive in matters of policy orto sermonise qua any matter which under the Constitution lies within the sphere oflegislature or executive, provided theseauthorities do not transgress theirconstitutional limits or statutory powers.”(emphasis supplied)Para 35. ''In our opinion fixing pay scales by courts byapplying the principle of equal pay for equal workupsets the high constitutional principle of separationof powers between the three organs of the State. Realising this, this Court has in recent years avoidedapplying the principle of equal pay for equal work, unless there is complete and wholesale identitybetween the two groups (and there too the mattershould be sent for examination by an Expert Committeeappointed by the Government instead of the courtitself granting higher pay)."7. The said decision also came to be followed by the SupremeCourt in the subsequent judgment in State of Punjab v. SurinderSingh and another reported in [2007 (12) Scale 602].

In the light of the above, there is no case made out toentertain the writ petition. It is for the petitioners to move the State Government for such an equalisation of pay. The writ petition https://hcservices.ecourts.gov.in/hcservices/ will stand dismissed. No costs. The dismissal of the writ petitionwill not prevent the petitioners from approaching the Governmentwith an appropriate request and needless to state that therepresentation if any made will be duly considered by the firstrespondent. Sd/Asst. Registrar/true copy/Sub Asst. Registrarjs To1.The Secretary to Government, Department of School Education, Fort St.George, Chennai-9.2.The Director of School Education, Chennai-6.3. The District Educational Officer, Tanjore, Tanjore District.4. The Correspondent/Secretary, Sri K.G.S.Hr.Sec. School, Aduthurai, Tanjore District-612 101.5. The Correspondent/Secretary, St.Joseph's Girls' Hr.Sec. School, Kumbakonam Taluk, Thanjavur District.6. The Correspondent/Secretary,T.A.Hr.Sec. School, Thiruvidaimarudur, Thanjavur District. 7. The Correspondent/Secretary, Crescent Hr.Sec. School, Avaniapuram, Aduthurai (via)Thiruvidaimarudur Taluk, Thanjavur District. SSR(CO)km/26.3.W.P.No.19224 of 1998