Judgment · High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.30867 of 2006R.Thangasamy.. Petitioner Vs.

The State of Tamil Nadu, rep. by the Secretary to the Govt., Finance (Pay Cell) Department, Secretarait, Chennai-600 009.

The Secretary to Government, Transport Department, Secretariat, Chennai-600 009.

The State Port Officer, First Line Beach, Singaravelar Maaligai, 32, Rajaji Salai, Chennai-1.. RespondentsThis writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records on the file of thefirst respondent in connection with the order passed by him in hisproceedings Lr.No.63755/CMPC/97-1, dated 14.8.97 and to quash thesame and to direct the respondents to pay the scale of pay ofRs.950-1500 with effect from 1.6.1988 with 18% interest and fix thepension and retirement benefits on that basis. For Petitioner: Mr.R.SingaravelanFor Respondents: Mr.P.Gurunathan, GA- - - - ORDERHeard both sides. 2. The petitioner has filed O.A.No.8675 of 1997, seeking tochallenge an order of the first respondent, dated 14.8.1997. 3. In view of the abolition of the Tribunal, the matter stoodtransferred to this court and was renumbered as W.P.No.30867 of https://hcservices.ecourts.gov.in/hcservices/

2006. On notice from the Tribunal, the third respondent has filed areply affidavit, dated 2.6.2000 together with supporting documents. On behalf of the first and second respondents, an independent replyaffidavit, dated 1.10.2000 was also filed.

The petitioner earlier moved the Tribunal with O.A. No.4736of 1997 seeking for a direction to dispose of his representation, dated 11.3.1997. Even the said representation was given just 2months before his date of retirement (namely on 6.5.1997). TheTribunal, by an order dated 1.7.97, directed the respondents todispose of his representation in accordance with law.

Pursuant to the same, the first respondent, by the impugnedorder, dated 14.8.97, rejected his request. It was stated by themthat in the department, the adhoc rules prescribed for appointmentto the post of Turner is an pass to the 8th standard with practicalexperience in the respective field. There is no specific provisionprescribing the ITI Certificate. Therefore, the post of Turner inthe Port Department is provided with the scale of pay of Rs.800-1150 with effect from 1.6.88 as against the pre-revised scale ofpay of Rs.505-845. The petitioner's placing reliance upon the scaleof pay available to Turner Grade II in other departments has norelevance, since in the other department, the prerequisite for therecruitment to the post of Turner Grade II was an ITI Certificate.

In paragraph No.6 of the reply affidavit filed by the thirdrespondent, the claim of the petitioner was answered in thisfashion, which reads as follows: "The contention of the applicant that all the Government orders mandatorily say that the personsserving in the post of Turner in various industrialconcern had to be paid a sum of Rs.950-1500 in theplace of Rs.505-845 is quite correct. But it isapplicable only to those Turners serving in theparticular Departments for which such orders have beenspecifically ordered by the Government examining thenature, amount of work done by them in their respectiveDepartments. The applicant to state that the ordersissued in those G.Os., referred to in the previous paraare applicable to the Tamilnadu Port Department also isincorrect and totally misinterpretation of the ordersof the Government as they are not common G.Os. issuedto be carried out in all the Departments of the State. The averments made by the applicant that he is indisputably a I.T.I. holder and hence he is entitled toget the scale of pay of Rs.950-1500 with effect from1.6.88 in the light of the 5th Pay Commission read withall the above said Government orders are totally wrongand not at all acceptable under any laws or naturaljustice as the G.Os. are not at all intended to the Tamilnadu Port Department and also he is only aS.S.L.C. failed candidate without I.T.I. certificateaccording to the entries in the Service Register which https://hcservices.ecourts.gov.in/hcservices/ is the important documentary evidence forqualification, age etc. "

Even assuming that the petitioner was having an higherqualification than the one prescribed for the post of Turner in the Port Department, that by itself will not grant him any scale on parwith other Turners working in the other Departments of the Government. Essentially, pay is fixed by the Government on thebasis of the relevant service rules prescribed for the said post bythe rules framed under Article 309 of the Constitution. The SupremeCourt also has held that based upon the qualification prescribedfor a post, the pay scales can vary.

In this context, it is necessary to refer to the judgment ofthe Supreme Court in Mewa Ram Kanojia v. A.I.I.M.S. reported in(1989) 2 SCC 235. It is necessary to extract pars 5 and 7 of thesaid judgment, which are as follows: "5. While considering the question of applicationof principle of ‘Equal pay for equal work’ it has to beborne in mind that it is open to the State to classifyemployees on the basis of qualifications, duties andresponsibilities of the posts concerned. If theclassification has reasonable nexus with the objectivesought to be achieved, efficiency in theadministration, the State would be justified inprescribing different pay scale but if theclassification does not stand the test of reasonablenexus and the classification is founded on unreal, andunreasonable basis it would be violative of Articles 14and 16 of the Constitution. Equality must be among theequals. Unequal cannot claim equality.7. Even assuming that the petitioner performssimilar duties and functions as those performed by an Audiologist, it is not sufficient to uphold his claimfor equal pay. As already observed, in judging theequality of work for the purposes of equal pay, regardmust be had not only to the duties and functions butalso to the educational qualifications, qualitativedifference and the measures of responsibilityprescribed for the respective posts. Even if the dutiesand functions are of similar nature but if theeducational qualifications prescribed for the two postsare different and there is difference in measure ofresponsibilities, the principle of ‘Equal pay for equalwork’ would not apply. ..."

Further, the petitioner never made a complaint about thediscrimination in the scale of pay at an earlier point of time andhe has been receiving the pay fixed pursuant to the recommendationsmade by the III and IV Pay commissions. He thought fit to send arepresentation only just prior to his retirement. https://hcservices.ecourts.gov.in/hcservices/