IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.06.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.30867 of 2006 R.Thangasamy .. Petitioner Vs. 1.The State of Tamil Nadu, rep. by the Secretary to the Govt., Finance (Pay Cell) Department, Secretarait, Chennai-600 009. 2.The Secretary to Government, Transport Department, Secretariat, Chennai-600 009. 3.The State Port Officer, First Line Beach, Singaravelar Maaligai, 32, Rajaji Salai, Chennai-1 .. Respondents This writ petition 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 on the file of the first respondent in connection with the order passed by him in his proceedings Lr.No.63755/CMPC/97-1, dated 14.8.97 and to quash the same and to direct the respondents to pay the scale of pay of Rs.950-1500 with effect from 1.6.1988 with 18% interest and fix the pension and retirement benefits on that basis. For Petitioner : Mr.R.Singaravelan For Respondents: Mr.P.Gurunathan, GA - - - - ORDER Heard both sides. 2.The petitioner has filed O.A.No.8675 of 1997, seeking to challenge an order of the first respondent, dated 14.8.1997. 3.In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.30867 of https://hcservices.ecourts.gov.in/hcservices/ 2006. On notice from the Tribunal, the third respondent has filed a reply affidavit, dated 2.6.2000 together with supporting documents. On behalf of the first and second respondents, an independent reply affidavit, dated 1.10.2000 was also filed. 4.The petitioner earlier moved the Tribunal with O.A. No.4736 of 1997 seeking for a direction to dispose of his representation, dated 11.3.1997. Even the said representation was given just 2 months before his date of retirement (namely on 6.5.1997). The Tribunal, by an order dated 1.7.97, directed the respondents to dispose of his representation in accordance with law. 5.Pursuant to the same, the first respondent, by the impugned order, dated 14.8.97, rejected his request. It was stated by them that in the department, the adhoc rules prescribed for appointment to the post of Turner is an pass to the 8th standard with practical experience in the respective field. There is no specific provision prescribing the ITI Certificate. Therefore, the post of Turner in the Port Department is provided with the scale of pay of Rs.800- 1150 with effect from 1.6.88 as against the pre-revised scale of pay of Rs.505-845. The petitioner's placing reliance upon the scale of pay available to Turner Grade II in other departments has no relevance, since in the other department, the prerequisite for the recruitment to the post of Turner Grade II was an ITI Certificate. 6.In paragraph No.6 of the reply affidavit filed by the third respondent, the claim of the petitioner was answered in this fashion, which reads as follows: "The contention of the applicant that all the Government orders mandatorily say that the persons serving in the post of Turner in various industrial concern had to be paid a sum of Rs.950-1500 in the place of Rs.505-845 is quite correct. But it is applicable only to those Turners serving in the particular Departments for which such orders have been specifically ordered by the Government examining the nature, amount of work done by them in their respective Departments. The applicant to state that the orders issued in those G.Os., referred to in the previous para are applicable to the Tamilnadu Port Department also is incorrect and totally misinterpretation of the orders of the Government as they are not common G.Os. issued to be carried out in all the Departments of the State. The averments made by the applicant that he is in disputably a I.T.I. holder and hence he is entitled to get the scale of pay of Rs.950-1500 with effect from 1.6.88 in the light of the 5th Pay Commission read with all the above said Government orders are totally wrong and not at all acceptable under any laws or natural justice as the G.Os. are not at all intended to the Tamilnadu Port Department and also he is only a S.S.L.C. failed candidate without I.T.I. certificate according to the entries in the Service Register which https://hcservices.ecourts.gov.in/hcservices/ is the important documentary evidence for qualification, age etc." 7.Even assuming that the petitioner was having an higher qualification than the one prescribed for the post of Turner in the Port Department, that by itself will not grant him any scale on par with other Turners working in the other Departments of the Government. Essentially, pay is fixed by the Government on the basis of the relevant service rules prescribed for the said post by the rules framed under Article 309 of the Constitution. The Supreme Court also has held that based upon the qualification prescribed for a post, the pay scales can vary. 8.In this context, it is necessary to refer to the judgment of the Supreme Court in Mewa Ram Kanojia v. A.I.I.M.S. reported in (1989) 2 SCC 235. It is necessary to extract pars 5 and 7 of the said judgment, which are as follows: "5. While considering the question of application of principle of ‘Equal pay for equal work’ it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality. 7. Even assuming that the petitioner performs similar duties and functions as those performed by an Audiologist, it is not sufficient to uphold his claim for equal pay. As already observed, in judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifications, qualitative difference and the measures of responsibility prescribed for the respective posts. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of ‘Equal pay for equal work’ would not apply. ..." 9.Further, the petitioner never made a complaint about the discrimination in the scale of pay at an earlier point of time and he has been receiving the pay fixed pursuant to the recommendations made by the III and IV Pay commissions. He thought fit to send a representation only just prior to his retirement. https://hcservices.ecourts.gov.in/hcservices/ 10.In the light of the stand taken by the respondents and in view of the legal precedents cited above, there is no case made out to countenance the prayer of the petitioner. Hence the writ petition stands dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1.The Secretary to the Govt., The State of Tamil Nadu, Finance (Pay Cell) Department, Secretarait, Chennai-600 009. 2.The Secretary to Government, Transport Department, Secretariat, Chennai-600 009. 3.The State Port Officer, First Line Beach, Singaravelar Maaligai, 32, Rajaji Salai, Chennai-1. W.P.NO.30867 OF 2006 VSV {CO} TP/10.6.2009. https://hcservices.ecourts.gov.in/hcservices/