Union of India v. Director General of Health Services & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28-01-2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE A. KULASEKARANWRIT PETITION NO.17244 OF 2008andM.P.NO.1 OF 20081.Union of India,Rep. by the Secretary to theGovernment of India,Ministry of Health & Family Welfare,Nirman Bhavan,New Delhi 110 001.2.The Director General of Health Services,Medical Education Section,D G H S Nirman Bhavan,New Delhi 110 011.3.The Director,JIPMER Institute,Dhanvanthri Nagar,Pondicherry 605 006.4.The Chief Medical Officer (Admn),JIPMER Institute,Dhanvanthri Nagar,Pondicherry 605 006... PetitionersVs.1.The Central Administrative Tribunal,Madras Bench,rep. by its Registrar,Madras.2.S. Winston Samuel.. RespondentsPetition filed under Article 226 of the Constitution of India forthe issuance of Writ of Certiorari to call for the records of the orderpassed in O.A.No.711 of 2006, dated 18.12.2007, on the file of the https://hcservices.ecourts.gov.in/hcservices/ Central Administrative Tribunal, Madras Bench, Madras, the firstrespondent herein, and to quash the same.For Petitioners: Mr.M.T. Arunan, SCCGFor Respondent-2: Mr.T.P. Prabakaran- - -JUDGMENTP.K. MISRA, JThe facts in brief are as follows :-The present Respondent No.2 is working as “Sheet Metal Maker” inthe Jawaharlal Institute of Post Graduate Medical Education andResearch, Pondicherry (hereinafter referred to as JIPMER). Such postis a Group "D" post having a pay scale of Rs.800-15-1010-EB-20-1150.The qualification required is passed in 8th Standard with certificate inthe relevant field from a recognized institution. The applicant /Respondent No.2 is, however, a matriculate having Diploma inRefrigeration and Air Conditioning from Indian Technical Institute,Bombay. He also obtained a Machinist Trade Certificate from theGovernment Industrial Training Institute, Madras. The grievance of theapplicant before the Administrative Tribunal was to the effect that inSafdarjung Hospital in Delhi, person holding the post of Sheet MetalWorker, which is a Group-C post, has a higher pay scale of Rs.1150-1500. According to him, the duties of a Sheet Metal Worker inSafdarjung Hospital in Delhi, which is also an Institute under theCentral government, being similar to the work done by the applicant,similar pay scale should be made applicable to both of them. TheAdvocate notice issued on behalf of the applicant / Respondent No.2having been rejected by order dated 21.4.2005, prayer was made forquashing such order and for directing the respondents / petitioners toconsider reclassification of the post of Sheet Metal Maker at JIPMERfrom Group "D" to Group "C" at par with the post of Metal Worker atSafdarjung Hospital. 2. Before the Tribunal, a reply was filed by the presentpetitioner No.3, who was Respondent No.3 in O.A.No.711 of 2006. Insuch reply it was contended that the post of Sheet Metal Maker inJIPMER was a Group "D" post with a pay scale of Rs.800-1150, which wassubsequently revised after V Pay Commission in the pay scale ofRs.2610-4000. The duties and responsibilities of such post are repairand fabrication of Sheet Metal Bodies for small equipments or turningwork on lathe, arc welding work and repair of different types oftrolleys. On the other hand, the post of Sheet Metal Maker inSafdarjung Hospital in Delhi is a Group "C" post having different https://hcservices.ecourts.gov.in/hcservices/ duties and responsibilities. It was indicated that the applicant'searlier representation for upgradation of pay has been forwarded to theDirectorate General of Health Services, New Delhi. It was also pointedout that question of reclassification of the post comes within thepurview of the expert bodies like Pay Commission and ultimately by theMinistry. 3. The Tribunal, while observing that exact duties andresponsibilities of the Sheet Metal Worker in Safdarjung Hospital werenot available as nothing was indicated in the reply, came to theconclusion that in the communication dated 28.11.1998, JIPMER as statedthat responsibilities of the Sheet Metal Maker and Sheet Metal Workerin Safdarjung hospital are almost the same and in view of thecommunication dated 28.11.1998, by applying the principle of equal payfor the equal work, directed the authorities concerned, namely, thepresent petitioners 1 and 2 to consider the reclassification of thepost of Sheet Metal Maker of JIPMER as a Group "C" post withcorresponding modification in recruitment rules, etc.. 4. This direction is questioned by the Union of India and theDirector General of Health Services, which were Respondents 1 and 2before the Tribunal as well as by the Director, JIPMER Institute andthe Chief Medical Officer, JIPMER Institute, who were Respondents 3 and4.5. In the writ petition, the petitioners have raised acontention that the educational qualification for the post of SheetMetal Worker in Safdarjung Hospital is pass in 10th Standard, whereasthe educational qualification for the post of Sheet Metal Maker inJIPMER is pass in 8th Standard and certificate in the relevant field ina recognised institution and, therefore, both the posts cannot beequated as similar. A contention is also raised that both the postsfall under two different categories and work involved are differentfrom each other and the nature of duties are not being identical, nodirection could have been issued by the Tribunal. It has beenspecifically indicated ". . . The Tribunal failed to afford anopportunity to the petitioners to compare the services of the two postsand to report tribunal before drawing any presumptions against thepetitioners" (sic. - quoted from the grounds).6. A counter has been filed in the present writ petition bythe applicant / Respondent No.2, wherein it is stated that before theTribunal the present Petitioners 1 and 2 had not filed any counterand a counter had been filed by the present Respondent No.3, who had infact recommended that the post at JIPMER may be treated at par with thepost available at Safdarjung Hospital.7. It is no doubt true that as a legal concept there cannotbe any dispute that there should be equal pay for the equal work. https://hcservices.ecourts.gov.in/hcservices/ However, the question as to whether two posts have same nature of workand responsibilities would depend upon several factors, which arenormally to be weighed by the experts, and courts of law are ill-equipped to consider all the technical aspects in such matters relatingto equality of pay.8. In this connection, it may be worthwhile to refer to thedecision of the Supreme Court in 2007 AIR SCW 5480 (S.C. CHANDRA &OTHERS V. STATE OF JHARKHAND & OTHERS), wherein Justice Katju, whileconcurring with the views expressed by Justice A.K. Mathur, hasobserved:"17. Fixation of pay scale is a delicate which requiresvarious considerations including financial capacity,responsibility, educational qualification, mode ofappointment, etc. and it has a cascading effect. Hence, insubsequent decisions of this Court the principle of equal payfor equal work has been considerably watered down, and it hashardly ever been applied by this Court in recent years.. . .24. It may be mentioned that granting pay scales is apurely executive function and hence the Court should notinterfere with the same. It may have a cascading effectcreating all kinds of problems for the Government andauthorities. Hence, the Court should exercise judicialrestraint and not interfere in such executive function videIndian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugsand Pharmaceuticals Ltd., (2007) 1 SCC 408."9. The decision reported in (2007) 1 SCC 408 (Indian Drugs &Pharmaceuticals Ltd. v. Workmen, Indian Drugs and PharmaceuticalsLtd.,), which was referred to in the above paragraphs, is also to thesimilar effect.10. From a reading of the aforesaid decisions, it is apparentthat the courts are ordinarily not expected to interfere in suchmatters relating to parity of pay scale unless the decision of thecompetent authority appears to be arbitrary.11. Learned counsel for Respondent No.2 has filed a separatetyped set of papers in this court referring to earlier recommendationsof III and IV Pay Commission. The present Respondent No.2, who was theapplicant before the Tribunal, was claiming parity on the basis of thedoctrine of equal pay for equal work. Therefore, prima facie theburden was on him to prove that the duties and responsibilities of boththe posts were same in all aspects. On the other hand, the presentpetitioners 1 and 2 were also duty-bound to produce relevant materials https://hcservices.ecourts.gov.in/hcservices/ to show that there was basic difference in the duties involved in boththe posts. As a matter of fact, the petitioners 1 and 2 have raised aground that they did not get sufficient opportunity to bring on therelevant materials on record.12. Having regard to all these aspects, we feel that sinceall the relevant materials were not placed before the Tribunal byeither parties, it would be more appropriate in the interest of justiceto set aside the order of the Tribunal and remand the same for freshconsideration so that the present petitioners, who were Respondents 1and 2, can bring on record the relevant materials and similarly theapplicant / present Respondent No.2 shall also place before theTribunal any additional materials which sought to be placed before thisCourt by way of typed set. It goes without saying that the Tribunalwill reconsider the matter in accordance with law after givingopportunity to both the parties to produce fresh materials. Partiesare at liberty to produce new materials including the recommendationsmade by VI Pay Commission as well as any subsequent order passed by theGovernment thereon. Accordingly, the writ petition is allowed and thematter is remanded to the Tribunal for fresh consideration. No costs.Consequently, the connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrardpkTo1.The Registrar,Central Administrative Tribunal,Madras Bench,Madras.2.The Secretary,The Government of India,Ministry of Health & Family Welfare,Nirman Bhavan,New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/

3.The Director General of Health Services,Medical Education Section,D G H S Nirman Bhavan,New Delhi 110 011.4.The Director,JIPMER Institute,Dhanvanthri Nagar,Pondicherry 605 006.5.The Chief Medical Officer (Admn),JIPMER Institute,Dhanvanthri Nagar,Pondicherry 605 006.SSR (CO)km/4.2. WP.NO.17244/2008