IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 27580 of 2007(G) -------------------------- PETITIONER: ------------- KERALA GOVENMENT PHARMACIST'S ASSOCIATION, REPRESENTED BY ITS GENERAL SECRETARY MR.K.C.AJIT KUMAR, STATE COMMITTEE, GENERAL HOSPITAL COMPOUND, THIRUVANANTHAPURAM. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS: ---------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SMT. SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 27580/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT, H.I/10281/2001DHS DATED 28.02.01. EXT.P2 : TRUE COPY OF THE COMMUNICATION NO.EHI-26861/2005/DHS, DATED 29.12.05 TO THE MEMBER SECRETARY, PAY REVISION COMMISSION. EXT.P3 : TRUE COPY OF THE REPRESENTATION FILED BY THE petitioner BEFORE THE RESPONDENT DATED 27.3.06. EXT.P4 : TRUE COPY OF THE JUDGMENT IN WPC : 21976 OF 2006-N, DATED 18.08.06. EXT.P5 : TRUE COPY OF THE COMMUNICATION NO.EWI-31058/06/DHB DATED 2.2.07, SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.P6 : TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT, NO.GO(Rt) NO.2364/2007/H&FWD, DATED 30.06.07. /TRUE COPY/ PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 27580 OF 2007 ------------------------------------------------- Dated this the 3rd day of June, 2009 JUDGMENT The petitioner is an association of Pharmacists in the Health Services Department of the Government of Kerala. Their grievance in this writ petition is that there is disparity in the matter of fixation of scale of pay between Pharmacist-Store Keeper in the Health Service Department and Pharmacist-Store Keeper in the Department of Indian Systems of Medicine, although the posts in the two departments are comparable. In both departments, the post of Pharmacist-Store Keeper is to be filled up from among Pharmacist Grade II. The post of Pharmacist Grade II is to be filled up by direct recruitment in both departments. In the Health Service Department the qualification prescribed for Pharmacist Grade II is a pass in Pre- degree course or Higher Secondary Course with Diploma in Pharmacy awarded after undergoing a course of two years. In the Department of Indian Systems of Medicine the qualification prescribed for Pharmacist Grade II is SSLC + experience in handling Ayurvedic medicines for two years. For promotion of Pharmacist Grade II to Pharmacist-Store Keeper in the department of Indian WPC :27580/07 -:2:- Systems of Medicine, the Pharmacists Grade II have to undergo nurses-cum-Pharmacist training for one year. The pre-revised scale of pay of Pharmacist-Store Keeper in the Health Services Department was Rs.4,600 - 7,125. The same was revised to Rs.7990 - 12930. The scale of pay of Pharmacist Grade II in Health Services Department(revised) is Rs.6650 - 10790. In the department of Indian Systems of Medicine the pre-revised scale of pay of Pharmacist-Store Keeper was Rs.5500 - 9055 which was revised to Rs.9190 - 15510. The scale of pay of Pharmacist Grade II in the department of Indian Systems of Medicine(revised) is Rs.5510 - 8590. Petitioner submits that from the above it is abundantly clear that identical posts in the two departments carry different scales of pay and posts requiring better qualification in the Health Services Department is given a lesser scale of pay than corresponding posts in the department of Indian Systems of Medicine, where the required qualifications are far less. In the above circumstances the petitioner filed a representation before the Government. By Ext.P4 judgment of this Court in WP(C) No.21979/06 the Government was directed to consider the claims of the petitioner. The Director of Health Services WPC :27580/07 -:3:- by Ext.P5 forwarded the representation to the Government with his comments. The Government by Ext.P6 order rejected the claim of the petitioner. Petitioner is challenging Ext.P6 order seeking the following reliefs: “i. To issue a declaration that persons working as Pharmacist Store Keeper in the Kerala Health Services are entitled to the same pay as that paid to Pharmacist Store Keeper in Indian Systems of Medicine (ISM) Department. ii. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order, directing the respondents to pay to the persons working as Pharmacist Store Keeper in the Kerala Health Services the same scale of pay that paid to Pharmacist Store Keeper in Indian Systems of Medicine (ISM) Department at least from 1st July, 2004. iii. To issue a writ of certiorari calling for the records leading to Exhibit P6 and quash the same. iv. Such other reliefs which this Hon'ble Court deems fit and necessary in the circumstances of the case and the costs of this case.” 2. No counter affidavit has been filed in this writ petition. I have heard the learned Government Pleader also. 3. I am of opinion that Ext.P6 is liable to be quashed for the mere reason that the Government has not applied its mind at all. The representation of the petitioner has been rejected by the WPC :27580/07 -:4:- following order in Ext.P6: “The Honourable High Court in its judgment read as 2nd paper above directed Government to pass appropriate orders on the representation submitted by Kerala Government Pharmacist Association. In the representation read as 1st paper above Kerala Government Pharmacist Association submitted to rectify the disparity in the pay scale of Pharmacist Store Keeper working in Health Services Department and Department of Indian Systems of Medicine. The Association also requested to allow a pay scale of Rs.10790 - 18000 for Pharmacist Store Keeper in the Health Services Department. Government have examined the matter in detail in consultation with the Finance Department and Government cannot agree with the petitioners demand as it is not justifiable. Therefore the representation submitted by Kerala Government Pharmacist Association is rejected and ordered accordingly. The order is issued in compliance of the judgment dated 18.08.06 of the Honourable High Court in P(C) No.21976/2006 of High Court.” 4. None of the contentions in the representation has been adverted to and no reason whatsoever has been given by the Government to reject the representation filed by the petitioner, in spite of the fact that this Court had directed the Government to consider the same. This is not what is expected by a responsible Government Secretary. WPC :27580/07 -:5:- 5. Even otherwise I find considerable merit in the contentions of the petitioner. The power of Court to interfere with the issues relating to pay revision has been recently considered by the Supreme Court in the decision of Union of India v. Dineshan K.K., [(2008) 1 SCC 586], in which the Supreme Court held thus in paragraphs 12 and 13: “12. The principle of “equal pay for equal work” has been considered, explained and applied in a catena of decisions of this Court. The doctrine of “equal pay for equal work” was originally propounded as part of the directive principles of the State policy in Article 39(d) of the Constitution. In Randhir Singh v. Union of India, (1982) 1 SCC 630, a Bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Articles 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara v. Union of India, (1983) 1 SCC 305. Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of “equal pay for equal work” has assumed status of a fundamental right. 13. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realising its cascading effect on other cadres, in subsequent decisions of this Court , a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the executive and expert bodies like the Pay Commission, etc. It has been emphasised that a carefully evolved pay structure ought not to be ordinarily disturbed by the court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide WPC :27580/07 -:6:- Secy. Finance Deptt. v. W.B. Registration Service Assn., (1993) Supp (1) SCC 153 and State of Haryana v Haryana Civil Secretariat Personal Staff Assn, (2002) 6 SCC 72). Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the executive, the court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the executive or the legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex facie irrational, arbitrary or unjust, it is open to the court to intervene.” (Emphasis supplied) 6. Earlier in the decision of K.T. Veerappa and others v. State of Karnataka and others , [(2006) 9 SCC 406], also the Supreme Court considered the jurisdiction of the Courts in such matters. In paragraph 13 of that decision, the Supreme Court held thus: “13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn, (2002) 6 SCC 72 and Union of India v. S.B. Vohra, (2004) 2 SCC 150. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of WPC :27580/07 -:7:- material and relevant factors.” (Emphasis supplied) 7. In view of those decisions, this Court would be justified in considering whether there is any rationale in the matter of differentiating between Pharmacist-Storekeeper in the Health Service Department and that in the Department of Indian Systems of Medicine in the matter of fixation of scales of pay. 8. In the Department of Indian Systems of Medicine the qualification prescribed for Pharmacist Grade II is much lower than that of Pharmacist Grade II in the Health Service Department. It is not disputed before me that the duties and responsibilities attached to the two posts are similar. No differentiating factors in favour of those in the Indian Systems of Medicine could not also be pointed out by the learned Government Pleader. That being so, there is absolutely no reason why the scales of pay should not also be at least identical although in view of the fact that the qualifications prescribed for the post of Pharmacist Grade II in the Department of Indian Systems of Medicine is lower than that for the corresponding post in the Health Service Department, which are the feeder category post for promotion as Pharmacist-Storekeeper, the Pharmacist WPC :27580/07 -:8:- Storekeeper in Health Service Department may even have a claim for higher scale of pay. Accordingly, Ext.P6 order is quashed and the 1st respondent is directed to pass fresh orders in the matter in accordance with the above findings, after affording an opportunity of being heard to the petitioner within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE ttb