CoramThe Honourable Mr v. The Secretary to Government

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 18-7-2007CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.28234 of 2006A. Krishnan, President,representing the Tamil Nadu All DepartmentsWatchman and Basic Servants Association,Mannargudi Nagar Q.M.District...PetitionerVs.1.The Secretary to Government,Agriculture Department,fort St.George, Madras - 9.2.The Director of Agriculture,Chepauk, Madras - 600 005.3.The Secretary to Government,Finance Department,Madras - 9....RespondentsThis writ petition came to be numbered under Article 226 ofthe Constitution of India, by way of transfer of O.A.No.1513 of1995 from the file of the Tamil Nadu Administrative Tribunal, witha prayer to direct the respondents to grant personal pay to all thebasic personnel in the Agriculture Department in Tamil Nadu BasicServices, who came under the revised scale of pay Rs.750 - 945 assanctioned P.P. to the basic personnel in Medical Department as perG.O.Ms.No.5 and G.O.Ms.No.669 Finance Pay Cell Department, dated4.1.1993 and 24.8.1992.For Petitioner:Mr.G.ElanchezhiyanFor Respondents:Mr.V.Manoharan,Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E RPetitioner association has filed the above writ petition forissuing a writ of mandamus to direct the respondents to grantpersonal pay to all the basic personnel in the AgricultureDepartment in the Tamil Nadu Basic Services, who come under therevised scale of pay of Rs.750--945, as sanctioned to the personnelin the Medical Department as per G.O.Ms.No.5 and G.O.Ms.No.669Finance (Pay Cell) Department, dated 4.1.1993 and 24.8.1992.2.The case of the petitioner association is that themembers of the association, who were appointed as Basic Servantsin the Agriculture Department are not paid 5% of their salary aspersonal pay, as it is paid to the Basic Servants of the MedicalDepartment viz., Cooks, Sanitary Workers, Nursing Assistants andHospital Workers, eventhough they were also fixed the revised scaleof pay of Rs.750--945, similar to the pay scale fixed to themembers of the petitioner association. It is further stated in theaffidavit that in spite of making several representations to extendthe same benefit to the members of the petitioner association, noorder is passed, and not extending the said benefit to the BasicServants of the Agriculture Department is to be treated as denialof equal pay for equal work. The last representation submitted bythe petitioner association is dated 14.2.1994 and till date noorder is passed is the grievance of the petitioner.3.The respondents filed counter affidavit before theTribunal wherein it is stated that by passing G.O.Ms.No.1364 Healthand Family Welfare Department dated 21.12.1992, the work norms ofthe Basic personnel in various medical services viz., Cooks,Sanitary workers, Nursing assistants and Hospital workers wasrevised at the request of the Tamil Nadu Anaithu Thurai OozhiyarSangam (jkpH;ehL midj;Jj; Jiw CHpah; r';fk;), Chennai, and HospitalWorkers belonging to Category-5. The nature of work of thepersonnel in this category differs from department to departmentbecause of the specialisation. It is further stated in the counteraffidavit that all basic service personnel in different departmentsare classified as single Category-5 and their pay was fixeduniformly as Rs.750--945 and 5% personal pay is also given due tothe nature of the duties and post is also fixed for every six bedsaccording to the order issued by the Government and hence there isno discrimination in the pay scale or in ordering personal pay of5% as it is ordered based on work norms fixed for the HospitalWorkers and the said kind of situation is not available for theother basic service personnel, working in other departments.Hence they are not granted personal pay as that of the officeassistants of the Health Department and therefore there is no https://hcservices.ecourts.gov.in/hcservices/ injustice to the Basic Servants of all departments including thatof the Agriculture Department.4.The learned counsel for the petitioner associationsubmitted that the Basic Servants, being a class by itself, therecannot be any discrimination in payment of salary. Allowing 5% ofsalary towards personal pay to the Basic Servants of the HealthDepartment is discriminatory and by not extending the same benefitto the members of the petitioner association, who are also thebasic servants, the principle of equal pay for equal work isviolated, which is in violation of Article 14 and 39(d) of theConstitution of India. The learned counsel also cited twodecisions of the Honourable Supreme Court reported in (1982) 1 SCC618 (Randhir Singh v. Union of India and others) and (1991) 17Administrative Tribunals Cases 261 (State of W.B. v. Debdas Kumar)to support his contentions.5.The learned Government Advocate appearing for therespondents on the other hand submitted that the nature of workperformed by the Hospital Workers are entirely different from thework of the Basic Servants working in other departments and eachBasic Servants in the Health Department has to take care of sixpatients in the bed in the Government Hospitals and based on theallotment of work only the said 5% of pay is given as personal payand as such there is no discrimination and there is indeligibledifferentia.6.I have considered the rival submissions made by thelearned counsel for the petitioner as well as the learnedGovernment Advocate for the respondents.7.The point in issue is whether the petitioner associationhas got a right to demand 5% of salary as personal pay as it isgiven to the basic servants of the Health and Family WelfareDepartment by applying the principle of equal pay for equal work.8.In the counter affidavit, at paragraph 12, the reason forgiving personal pay to the Basic Servants in various medicalservices is stated. For proper appreciation the same is extractedhereunder,"It is submitted that the work norms ofthe Basic Service Personnel in various MedicalDepartments was revised by taking the totalnumber of Cooks, Sanitary Workers, NursingAssistants and Hospital Workers to form asingle group and regulated at the rate of onepost for every six beds according to the ordersissued in G.O.Ms.No.1364, Health and FamilyWelfare Department, dated 21.12.92. On the https://hcservices.ecourts.gov.in/hcservices/ anology of the orders issued in G.O.Ms.No.669,Finance (PC) Department, dated 24.8.92, thepersonal pay as granted to Office Assistantswere extended to the hospital servants also inG.O.Ms.No.5, Finance (PC) Department, dated4.1.93. This order is applicable only to thebasic service personnel in the Governmenthospitals based on work norm fixed for thehospital workers. This kind of a situationdoes not exist in the case of other basicservice personnel working in other departmentsand hence they were not granted personal pay asthat of the Office Assistants. Though theBasic Service Personnel were classified undercategory 5, the personal pay was granted to theHospital Workers based on the revised worknorms ordered in G.O.Ms.No.1364, Health andFamily Welfare Department dated 21.12.92.Hence, no injustice has been caused to theother basic personnel who were in the pre-revised scale of Rs.450--720 and the revisedscale of Rs.750--945 as the personal paygranted to Office Assistants and HospitalWorkers is based upon the work norms. ......"In view of the work norms fixed for the Hospital Workers viz.,Cooks, Sanitary Workers, Nursing Assistants and Hospital Workers,there is functional difference between Basic Servants of otherdepartments, when compared to the Basic Servants working in theMedical Department and hence 5% of their salary is given aspersonal pay to them. The same cannot be treated as discriminatorytreatment and violative of Article 14 of the Constitution of India.9.Law on this subject i.e., whether the Government isempowered to fix different pay scale to a group of personnel wasconsidered by the Honourable Supreme Court in very many decisions. (a)In the decision reported in (1991) 1 SCC 619 (Grih KalyanKendra Workers' Union v. Union of India) the Honourable SupremeCourt considered the performance of different duties of same cadreemployees in different departments and upheld the said action ofthe Government and in paragraph 4 observed as follows,".......The employees of the Kendra wereexpected to leave the organisation once theylost the status of dependant of low paidgovernment employees. However, the employees ofthe Kendra have not met any of theseexpectations. Some of the employees onceinducted into the organisation have continuedfor a number of years. The employees working in https://hcservices.ecourts.gov.in/hcservices/ the Kendra are not regular employees and theduties performed by them are not comparable toany of the employees working under NDMC or anydepartment of Delhi Administration or under theUnion of India. The status of the Kendra is aunique one where the work and duties performedby its employees are quite different in naturethan those performed by the employees of NDMCand Delhi Administration."(Emphasis Supplied)(b)In the case of State of M.P. v. Pramod Bhartiya, (1993) 1SCC 539, the Honourable Supreme Court in paragraphs 12 and 13, heldthus,"12........ It is also not sufficient tosay that the service conditions are similar.What is more important and crucial is whetherthey discharge similar duties, functions andresponsibilities. On this score there is anoticeable absence of material. Whether we lookat the averments in, and the material producedalong with, the original petition or to theaverments in the counter-affidavit or even tothe averments in the counter-affidavit filed bythe Government in M.P.No.2277 of 1985 (uponwhich the counsel for the respondents hasplaced strong reliance), we do not find anyclear material to show that the duties,functions and responsibilities of both thecategories of lecturers are identical orsimilar. In this context, it would beappropriate to refer to the definition of theexpression “same work or work of similarnature” contained in clause (h) of Section 2 ofthe Equal Remuneration Act, 1976. The said Actwas enacted by Parliament (as pointed out bythis Court in Mackinnon Mackenzie v. AudreyD’Costa) to implement Article 39(d) of theConstitution and the obligation created by ‘TheConvention concerning Equal Remuneration forMen and Women Workers’ for work of equal value(generally referred to as ‘Equal RemunerationConvention, 1951’) adopted on June 29, 1951, towhich India is a signatory. Article 2 of theConvention obliged the signatory States toeffectuate the said rule by all means includingthe machinery of law. The said Act isapplicable to such establishments andemployments as may be notified by the CentralGovernment under Section 1(3) of the Act. https://hcservices.ecourts.gov.in/hcservices/ Though the said Act is mainly directed againstdiscrimination against women and is also notapplicable to the employments or establishmentsto which the Respondents herein belong, yet therelevance of the said definition cannot bedenied, occurs as it does in an enactment madeto give statutory shape to the rule of “equalpay for equal work both for men and women”. Thedefinition in Section 2(h) reads: “2. (h) ‘same work or work of a similarnature’ means work in respect of which theskill, effort and responsibility requiredare the same, when performed under similarworking conditions, by a man or a womanand the difference, if any, between theskill, effort and responsibility requiredof a man and those required of a woman arenot of practical importance in relation tothe terms and conditions of employment;" 13. It would be evident from thisdefinition that the stress is upon thesimilarity of skill, effort and responsibilitywhen performed under similar conditions.Further, as pointed out by Mukharji, J. (as hethen was) in Federation of All India Customsand Excise Stenographers 7 the quality of workmay vary from post to post. It may vary frominstitution to institution. We cannot ignore oroverlook this reality. It is not a matter ofassumption but one of proof. The respondents(original petitioners) have failed to establishthat their duties, responsibilities andfunctions are similar to those of the non-technical lecturers in Technical Colleges. Theyhave also failed to establish that thedistinction between their scale of pay and thatof non-technical lecturers working in TechnicalSchools is either irrational and that it has nobasis, or that it is vitiated by mala fides,either in law or in fact (see the approachadopted in Federation case 7). It must beremembered that since the plea of equal pay forequal work has to be examined with reference toArticle 14, the burden is upon the petitionersto establish their right to equal pay, or theplea of discrimination, as the case may be. https://hcservices.ecourts.gov.in/hcservices/ This burden the original petitioners(respondents herein) have failed to discharge."(c)In (1996) 2 SCC 77 (State of Haryana v. Jasmer Singh) inparagraph 8, the Honourable Supreme Court held as follows,"It is, therefore, clear that the qualityof work performed by different sets of personsholding different jobs will have to beevaluated. There may be differences ineducational or technical qualifications whichmay have a bearing on the skills which theholders bring to their job although thedesignation of the job may be the same. Theremay also be other considerations which haverelevance to efficiency in service which mayjustify differences in pay scales on the basisof criteria such as experience and seniority,or a need to prevent stagnation in the cadre,so that good performance can be elicited frompersons who have reached the top of the payscale. There may be various other similarconsiderations which may have a bearing onefficient performance in a job. This Court hasrepeatedly observed that evaluation of suchjobs for the purpose of pay scale must be leftto expert bodies and, unless there are any malafides, its evaluation should be accepted." The said decision was followed in the case of Garhwal Jal SansthanKarmachari Union v. State of U.P., (1997) 4 SCC 24 (para 9) whereinit is observed that the principle of equal pay for equal work isnot always easy to apply and there are inherent difficulties incomparing and evaluating work done by different persons indifferent organisations, or even in the same organisation.(d)In (2003) 11 SCC 658 (Union of India v. Tarit Ranjan Das)the Honourable Supreme Court considered the issue of same scale ofpay fixed for Stenographers Grade 'C' in the Central Secretariatand Stenographer Grade-II in the Office of the Geological Survey ofIndia and upheld the said fixation on the ground that equality isnot based on designation or the nature of work alone, but there areseveral other factors like responsibilities, reliabilities,experience, confidentiality involved, functional need and therequirements commensurate with the position in the hierarchy.(e)In the decision reported in (2005) 2 SCC 286 (Deb NarayanShyam v. State of W.B.) also the Honourable Supreme Courtconsidered the difference in duties and rejected the claim forequal pay for equal work and in paragrphs 15 and 16 held asfollows,"15. While the work and duties performedby the Amins and Surveyors are not identical, https://hcservices.ecourts.gov.in/hcservices/ there is no question of giving them equal payfor equal work. The principle of “equal pay forequal work” depends upon the nature of dutiesperformed by a particular category of posts andthe qualifications for their recruitment. Fromthe above discussion, it is clear that neitherthe duties nor the functions are identical northe recruitment for the posts of Amins andSurveyors is identical as the qualification forrecruitment for both the posts is different. Alarge number of decisions have been citedbefore us with regard to the principle of“equal pay for equal work” by both sides. Weneed not deal with the said decisions tooverburden this judgment. Suffice it to saythat the principle is settled that if the twocategories of posts perform the same duties andfunctions and carry the same qualification,then there should not be any distinction in payscale between the two categories of postssimilarly situated. But when they are differentand perform different duties and qualificationsfor recruitment being different, then theycannot be said to be equated so as to qualifyfor equal pay for equal work. In thisconnection reference has been made to thefollowing decisions: 1. State of U.P. v. J.P. Chaurasia, (1989) 1SCC 1212. Secy., Finance Deptt. v. W.B. RegistrationService Assn., 1993 Supp (1) SCC 1533. Shyam Babu Verma v. Union of India, (1994) 2SCC 5214. State of W.B. v. Hari Narayan Bhowal, (1994)4 SCC 785. Union of India v. Ram Gopal Agarwal, (1998)2 SCC 5896. Union of India v. Pradip Kumar Dey, (2000) 8SCC 5807. Govt. of W.B. v. Tarun K. Roy, (2004) 1 SCC347.16. We need not deal with the aforesaidcases on the subject of the principle of equalpay for equal work as it is more than clearthat the post of Amin is different from that ofthe Surveyor as the Amins do not discharge the https://hcservices.ecourts.gov.in/hcservices/ same duties as that of the Surveyors and assuch they are not entitled to claim equal payfor equal work. All these cases which have beenreferred to above are only for the purpose ofshowing that in each case there are somepeculiar reasons which have persuaded the Courtto grant benefit in some cases and decline togrant benefit in other cases. In the presentcase, there is categorical finding that boththe categories of posts discharge differentfunctions and duties and there is no questionof granting equal pay on the principle of“equal pay for equal work”."(Emphasis Supplied)10.The decisions cited by the learned counsel for thepetitioner reported in (1982) 1 SCC 618 (Randhir Singh v. Union ofIndia) is not supporting the case of the petitioner. In paragraph6 of the said judgment, it is held as follows."......... We concede that equation of postsand equation of pay are matters primarily forthe executive Government and expert bodies likethe Pay Commission and not for courts but wemust hasten to say that where all things areequal that is, where all relevantconsiderations are the same, persons holdingidentical posts may not be treateddifferentially in the matter of their paymerely because they belong to differentdepartments. Of course, if officers of the samerank perform dissimilar functions and thepowers, duties and responsibilities of theposts held by them vary, such officers may notbe heard to complain of dissimilar pay merelybecause the posts are of the same rank and thenomenclature is the same."(Emphasis Supplied)The other decision cited by the learned counsel for the petitionerreported in (1991) 17 Administrative Tribunal Cases 261 (State ofW.B. v. Debdas Kumar) is not a case where different duties wereperformed and therefore the said judgment will not help thepetitioner to sustain the argument for claiming equal pay for equalwork.11.From the perusal of the above decisions and having regardto the counter affidavit filed by the respondents justifying 5% of https://hcservices.ecourts.gov.in/hcservices/ salary as personal pay to the basic servants of Health Department,I am of the firm view that the nature of the duties performed bythe Basic Servants of the Health Department and the AgricultureDepartment are dissimilar and the petitioner association has notmade out a case for ordering equal pay for equal work.There is no merit in the writ petition and the same isdismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vrTo1.The Secretary to Government, Agriculture Department,Fort St.George, Madras - 9.2.The Director of Agriculture, Chepauk, Madras - 600 005.3.The Secretary to Government, Finance Department,Madras - 9.1 cc to Mr.G.Elenchezhiyan, Advocate,SR. 444251 cc to the Government Pleader, sr. 44127W.P.No.28234 of 2006 RS (CO)kk 24/7