T. Gnanaprakasam v. The Secretary to Government, Finance (Pay Cell) Department, Fort St. George, Madras

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.04.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NOs.29768 and 31494 of 20061.T.Gnanaprakasam2.J.Sundara Jaya Jothi (died)3.N.Prabakaran4.S.Abirama Sundari5.S.Vetri Selvan6.S.Ravimathi7.S.Kavitha8.S.Kamaladevi (Legal heirs impleaded as per order of the court in MA.No.7222/2000, dt.29.9.2000).. Petitioners in WP No.29768/2006C.Jayachandran.. Petitioner in WP No.31494/2006Vs.1.The Secretary to Government, Finance (Pay Cell) Department, Fort St. George, Madras-9.2.The Director of Information and Public Relations, Fort St. George, Madras-9.3.The Chief Producer, Tamil Nadu Films Division, Tharamani, Madras-113.4.The Deputy Secretary to Government, Finance (Pay Cell) Department, Fort St. George, Madras-9... Respondents in WP No.29768/20061.The Assistant Director, Information & Tourism Department, Tamil Arasu Office, Government Estate, Chennai-2. https://hcservices.ecourts.gov.in/hcservices/

2.The Director, Information & Tourism Department, Fort St. George, Madras-9... Respondents in WP No.31494/2006W.P.No.29768 of 2006 has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theerratum issued to the 1989 pay schedule by the Deputy Secretary toGovernment, Finance (P.C.) Department in Letter No.41184/PC/96-2,dated 26.7.1996, quash the same and to direct the respondents hereinto fix the scale of pay of the applicants on par with productionManagers Editors, Sound Recordist, Electrical Supervisors,Electronics Engineer and Video Editor at 1640-2900 as revised by theFifth Pay commission in bringing the above categories under samegroup with effect from the date on which Production Managers etc.were placed in the said scale and disburse all the arrears within ashort date. W.P.No.31494 of 2006 has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamus todirect the respondents to re-designate the applicant as Artist GradeI and to refix his scale of pay on the scale of 1400-2600.For Petitioners: Mr.K.Rajkumar in W.P.No.29768 of 2006 Mr.R.Muthuklannu for Ms.K.Dhanalakshmi in W.P.No.31494 of 2006For Respondents: Mr.P.Gurunathan, GA in both the petitionsCOMMON ORDERThe petitioners in O.A.No.296 of 1997 (W.P.No.29768 of 2006)filed the original application before the Tamil Nadu AdministrativeTribunal, challenging the order of the Government, dated 26.7.1996,wherein they were informed about the erratum issued to the payschedule 1989. In the erratum issued, the Government had stated asfollows:"In the Pay Schedule 1989, under the sub-heading"Tamil Nadu Films Division" under the heading"Information and Public Relations", the entry under thecolumn (3) in respect of Sl.No.97 (Unit Manager) shallbe substituted by Rs.1400-2600."2.On notice from the Tribunal, the first respondent hadfiled a reply affidavit, dated 20.11.2000. In paragraphs 6 and 30 ofthe reply affidavit, it has been averred as follows:"6.It is submitted that as per G.O.Ms.No.666,Finance (PC) dated:27.6.89 the scale of pay of the post https://hcservices.ecourts.gov.in/hcservices/ of Unit Manager, Tamil Nadu Film Division as Rs.905-1545pre-revised and Rs.1400-2600 revised. Further, the ChiefProducer, Tamil Nadu Film Division has brought to thenotice of the Government that the list of scales of paypublished in the Pay Schedule, 1989 under the headingTamil Nadu Film Division, Serial No.97 on page-126 , thescale of pay of the post of Unit Manager has beenmentioned as Rs.905-1545 pre-revised and Rs.1600-2660revised, and to state that, whether any amendment hasbeen issued in this regard. The Government examined theproposal of the Chief Producer, Tamil Nadu Film Divisionand clarified that the scale of pay indicated in the PaySchedule, 1989 is not based on any orders but only aprinting error and it cannot be taken into account.Therefore, to set right the printing mistake, necessaryerratum was issued to the Pay Schedule, 1989 inGovernment Letter No.41184, Finance (PC), dated:26.7.96and to notify as under the sub-heading "Tamil Nadu FilmDivision" under the heading "Information & PublicRelations" the entry under the column (3) in respect ofSerial No.97(Unit Manager) shall be substituted byRs.1400-2600. Further, this has also been communicatedto the applicant through the Information & PublicRelation Department Letter No.25824/Admn.II/96-2,dated:25.11.96. .."30. ...The Unit Manager post is a subordinatepost and is coming under the control of ProductionManager. Hence, the claim of equal pay on par with thepost of Production Manager is not justifiable. Further,the Government have granted the revised scale of pay ofRs.1400-2600 for many technical categories on the pre-revised scales of pay of Rs.905-1545 and Rs.1045-1775.Hence, grant of Rs.1400-2600 is justifiable."3.In W.P.No.31494 of 2006 (O.A.No.6904 of 1997), thepetitioner was a Special grade Photographer in the Tamil ArasuOffice and he sought for a direction to the respondents to re-designate the applicant as Artist Grade I and refix his pay in thescale of Rs.1400-2600. On notice from the Tribunal, the respondentshave filed a reply affidavit, dated 13.01.1998. In paragraph 5 ofthe reply affidavit, it was averred as follows:"5. ... The Assistant Director, Tamil ArasuOffice, has sent proposal to Government to redesignatethe post of Assistant Photographer in Tamil Arasu asArtist Grade I and to revise the scale of pay fromRs.1200-2040 to Rs.1400-2600 with effect from 1.6.88.Thiru C.Jayachandran, Special grade AssistantPhotographer is a Diploma Holder in Fine Arts only. Hisnature of work is Artist. But Government in FinanceDepartment have agreed to the proposal and deferred thedecision till next pay commission vide LetterNo.14100/PC/96-1 dated 7.11.96 (FinanceU.O.No.71022/PC/96-1 dated 12.11.96)." https://hcservices.ecourts.gov.in/hcservices/

4.In view of the abolition of the Tribunal, these mattersstood transferred to this court and were renumbered as W.P.Nos.29768and 31494 of 2006 respectively. 5.Mr.K.Rajkumar, the learnedcounsel for the petitioners notwithstanding the fact that theGovernment had stated that it was a clerical error by which theposts were included in the Pay Schedule, argued that in effect theyare eligible for the higher scale. In the second case, thepetitioner wanted a direction to the Government to include the caseof the petitioner in the terms of reference of the future paycommission. He also relied upon certain decision of the SupremeCourt to contend that for equal work there must be equal pay. 6.However, the recent decisions of the Supreme Court whichhave a bearing on this issue must be referred to. The Supreme Courtin S.C. Chandra v. State of Jharkhand reported in (2007) 8 SCC 279had held as follows:"35. In our opinion fixing pay scales by courtsby applying 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 identity betweenthe two groups (and there too the matter should be sentfor examination by an Expert Committee appointed by theGovernment instead of the court itself granting higherpay).36. It is well settled by the Supreme Court thatonly because the nature of work is the same,irrespective of educational qualification, mode ofappointment, experience and other relevant factors, theprinciple of equal pay for equal work cannot apply videGovt. of W.B. v. Tarun K. Roy2.37. Similarly, in State of Haryana v. HaryanaCivil Secretariat Personal Staff Assn. the principle ofequal pay for equal work was considered in great detail.In paras 9 and 10 of the said judgment the Supreme Courtobserved that equation of posts and salary is a complexmatter which should be left to an expert body. Thecourts must realise that the job is both a difficult andtime consuming task which even experts having theassistance of staff with requisite expertise have foundit difficult to undertake. Fixation of pay anddetermination of parity is a complex matter which is forthe executive to discharge. Granting of pay parity bythe court may result in a cascading effect and reactionwhich can have adverse consequences vide Union of Indiav. Pradip Kumar Dey."7.The Supreme Court in its judgment in Ramesh Singh Vs.Union of India and others reported in (2008) 5 SCC 173 had held asfollows: https://hcservices.ecourts.gov.in/hcservices/ "6. In view of what has been stated in SukhdevSingh Gill case and the fact that the Fourth and FifthCentral Pay Commissions considered the relevant aspects,we are of the view that the prayers as made cannot beaccepted, more particularly, when there is no challengeto the recommendations of the Fourth and Fifth CentralPay Commissions. It needs no emphasis that even if such achallenge is made, the scope for interference isextremely limited because the Court does not normallysubstitute its views for those of expert bodies like thePay Commission unless some glaring infirmities areestablished."8.The Supreme Court in its judgment in State of W.B. v.Kamal Sengupta, reported in (2008) 8 SCC 612, had held as follows:"55. It is our considered view that in theabsence of factual foundation, the High Court was notjustified in recording a conclusion that denial of PayScales 19 and 21 had resulted in violation of therespondents’ fundamental rights guaranteed underArticles 14, 16 and 21 of the Constitution and that tooby ignoring the fact that the respondents had notproduced any tangible evidence to prima facie prove thatthey had been subjected to hostile discrimination orthat the decision of the State Government not to extendthe benefit of Pay Scales 19 and 21 to members of theService was irrational and arbitrary. It is trite to saythat in such matters the onus is always on the employeeto prima facie substantiate the plea of discriminationor arbitrary exercise of power and only then the Stateor its instrumentality/agency or the public body (theemployer) can be called upon to show that its decisionis non-discriminatory, non-arbitrary, fair and in publicinterest."9. In the light of the above legal precedents and thefactual matrix involved in these two writ petitions, the writpetitions are deserved to be dismissed and are accordingly,dismissed. However, there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary to Government, Finance (Pay Cell) Department, Fort St. George, Madras-9. https://hcservices.ecourts.gov.in/hcservices/

2.The Director of Information and Public Relations, Fort St. George, Madras-9.3.The Chief Producer, Tamil Nadu Films Division, Tharamani, Madras-113.4.The Deputy Secretary to Government, Finance (Pay Cell) Department, Fort St. George, Madras-9.5.The Assistant Director, Information & Tourism Department, Tamil Arasu Office, Government Estate, Chennai-2.6.The Director, Information & Tourism Department, Fort St. George, Madras-9.1 cc to Mr.K. Rajkumar, SR. 16205W.P.NOS.29768 AND31494 OF 2006MA (CO)kk 28/4