IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.04.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.29768 and 31494 of 2006 1.T.Gnanaprakasam 2.J.Sundara Jaya Jothi (died) 3.N.Prabakaran 4.S.Abirama Sundari 5.S.Vetri Selvan 6.S.Ravimathi 7.S.Kavitha 8.S.Kamaladevi (Legal heirs impleaded as per order of the court in MA.No.7222/2000, dt.29.9.2000) .. Petitioners in WP No.29768/2006 C.Jayachandran .. Petitioner in WP No.31494/2006 Vs. 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.29768/2006 1.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.31494/2006 W.P.No.29768 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the erratum issued to the 1989 pay schedule by the Deputy Secretary to Government, Finance (P.C.) Department in Letter No.41184/PC/96-2, dated 26.7.1996, quash the same and to direct the respondents herein to fix the scale of pay of the applicants on par with production Managers Editors, Sound Recordist, Electrical Supervisors, Electronics Engineer and Video Editor at 1640-2900 as revised by the Fifth Pay commission in bringing the above categories under same group with effect from the date on which Production Managers etc. were placed in the said scale and disburse all the arrears within a short date. W.P.No.31494 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to re-designate the applicant as Artist Grade I 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 2006 For Respondents : Mr.P.Gurunathan, GA in both the petitions COMMON ORDER The petitioners in O.A.No.296 of 1997 (W.P.No.29768 of 2006) filed the original application before the Tamil Nadu Administrative Tribunal, challenging the order of the Government, dated 26.7.1996, wherein they were informed about the erratum issued to the pay schedule 1989. In the erratum issued, the Government had stated as follows: "In the Pay Schedule 1989, under the sub-heading "Tamil Nadu Films Division" under the heading "Information and Public Relations", the entry under the column (3) in respect of Sl.No.97 (Unit Manager) shall be substituted by Rs.1400-2600." 2.On notice from the Tribunal, the first respondent had filed a reply affidavit, dated 20.11.2000. In paragraphs 6 and 30 of the 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.905-1545 pre-revised and Rs.1400-2600 revised. Further, the Chief Producer, Tamil Nadu Film Division has brought to the notice of the Government that the list of scales of pay published in the Pay Schedule, 1989 under the heading Tamil Nadu Film Division, Serial No.97 on page-126 , the scale of pay of the post of Unit Manager has been mentioned as Rs.905-1545 pre-revised and Rs.1600-2660 revised, and to state that, whether any amendment has been issued in this regard. The Government examined the proposal of the Chief Producer, Tamil Nadu Film Division and clarified that the scale of pay indicated in the Pay Schedule, 1989 is not based on any orders but only a printing error and it cannot be taken into account. Therefore, to set right the printing mistake, necessary erratum was issued to the Pay Schedule, 1989 in Government Letter No.41184, Finance (PC), dated:26.7.96 and to notify as under the sub-heading "Tamil Nadu Film Division" under the heading "Information & Public Relations" the entry under the column (3) in respect of Serial No.97(Unit Manager) shall be substituted by Rs.1400-2600. Further, this has also been communicated to the applicant through the Information & Public Relation Department Letter No.25824/Admn.II/96-2, dated:25.11.96. .." 30. ...The Unit Manager post is a subordinate post and is coming under the control of Production Manager. Hence, the claim of equal pay on par with the post of Production Manager is not justifiable. Further, the Government have granted the revised scale of pay of Rs.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), the petitioner was a Special grade Photographer in the Tamil Arasu Office and he sought for a direction to the respondents to re- designate the applicant as Artist Grade I and refix his pay in the scale of Rs.1400-2600. On notice from the Tribunal, the respondents have filed a reply affidavit, dated 13.01.1998. In paragraph 5 of the reply affidavit, it was averred as follows: "5. ... The Assistant Director, Tamil Arasu Office, has sent proposal to Government to redesignate the post of Assistant Photographer in Tamil Arasu as Artist Grade I and to revise the scale of pay from Rs.1200-2040 to Rs.1400-2600 with effect from 1.6.88. Thiru C.Jayachandran, Special grade Assistant Photographer is a Diploma Holder in Fine Arts only. His nature of work is Artist. But Government in Finance Department have agreed to the proposal and deferred the decision till next pay commission vide Letter No.14100/PC/96-1 dated 7.11.96 (Finance U.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 matters stood transferred to this court and were renumbered as W.P.Nos.29768 and 31494 of 2006 respectively. 5.Mr.K.Rajkumar, the learned counsel for the petitioners notwithstanding the fact that the Government had stated that it was a clerical error by which the posts were included in the Pay Schedule, argued that in effect they are eligible for the higher scale. In the second case, the petitioner wanted a direction to the Government to include the case of the petitioner in the terms of reference of the future pay commission. He also relied upon certain decision of the Supreme Court to contend that for equal work there must be equal pay. 6.However, the recent decisions of the Supreme Court which have a bearing on this issue must be referred to. The Supreme Court in S.C. Chandra v. State of Jharkhand reported in (2007) 8 SCC 279 had held as follows: "35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay). 36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Govt. of W.B. v. Tarun K. Roy2. 37. Similarly, in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. the principle of equal pay for equal work was considered in great detail. In paras 9 and 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The courts must realise that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences vide Union of India v. 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 as follows: https://hcservices.ecourts.gov.in/hcservices/ "6. In view of what has been stated in Sukhdev Singh Gill case and the fact that the Fourth and Fifth Central Pay Commissions considered the relevant aspects, we are of the view that the prayers as made cannot be accepted, more particularly, when there is no challenge to the recommendations of the Fourth and Fifth Central Pay Commissions. It needs no emphasis that even if such a challenge is made, the scope for interference is extremely limited because the Court does not normally substitute its views for those of expert bodies like the Pay Commission unless some glaring infirmities are established." 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 the absence of factual foundation, the High Court was not justified in recording a conclusion that denial of Pay Scales 19 and 21 had resulted in violation of the respondents’ fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution and that too by ignoring the fact that the respondents had not produced any tangible evidence to prima facie prove that they had been subjected to hostile discrimination or that the decision of the State Government not to extend the benefit of Pay Scales 19 and 21 to members of the Service was irrational and arbitrary. It is trite to say that in such matters the onus is always on the employee to prima facie substantiate the plea of discrimination or arbitrary exercise of power and only then the State or its instrumentality/agency or the public body (the employer) can be called upon to show that its decision is non-discriminatory, non-arbitrary, fair and in public interest." 9. In the light of the above legal precedents and the factual matrix involved in these two writ petitions, the writ petitions 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.Registrar vvk To 1.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. 16205 W.P.NOS.29768 AND 31494 OF 2006 MA (CO) kk 28/4 https://hcservices.ecourts.gov.in/hcservices/