IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 OP.No. 10473 of 1998(V) ----------------------- PETITIONER(S): --------------- 1. GEORGE MATHAI THARAKAN, ASSOCIATE PROFESSOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT REGIONAL CENTRE, KOCHI. 2. DR. R. PRAKASAM, ASSOCIATE PROFESSOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT, THIRUVANANTHAPURAM. 3. DR. S. RADHAKRISHNA PILLAI, DO. DO. 4. DR. T.A. MENON, DO. DO. 5. V.K. GEORGE, ASSOCIATE PROFESOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT, REGIONAL CENTRE, KOZHIKODE. BY ADV. SRI.ELVIN PETER P.J. SRI.P.N.SANTHOSH SRI.S.RAMESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. INSTITUTE OF MANAGEMENT IN GOVERNMENT, REP. BY ITS SECRETARY, VIKAS BHAVAN, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON (SR.) FOR R2 & 3 SRI.K.VINODKUMAR FOR R2 AND 3 SRI.R.S.KALKURA FOR R2 & 3 GOVERNMENT PLEADER SRI.M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 10473/1998. --------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 30TH SEPT. 1987. EXT.P2 ORDER DT. 15-5-1990. EXT.P3 JUDGMENT IN O.P.NO. 12125/1991. EXT.P4 REPRESENTATION DT. 9-9-1997. EXT.P5 ORDER DT. 8-1-1998. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 10473 of 1998 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd December, 2008. J U D G M E N T Petitioners are employees of the Institute of Management in Government (IMG), an autonomous institution owned and financed by the Government of Kerala. They are aggrieved by Ext. P5 order of the Government, whereby their representations seeking retrospective effect to wage revision on par with Central Government employees with effect from 1-1-1986 has been rejected. The contention of the petitioners is that the IMG was formed by the Government of Kerala in the same model as of Indian Institute of Management under the Ministry of Human Resources Development of the Government of India. According to them, the duties and functions of the employees of the two institutions are comparable and therefore going by the principle of equal pay for equal work, the employees of IMG should also be given pay revision as in the case of the employees of the Indian Institute of Management, whose pay revision was effective with effect from 1-1-986, whereas that of the employees of the IMG has been revised with effect from 1-1-1990. They pointed out that by Ext. P1, the governing body of IMG had recommended to the Government to revise the scales of pay of the employees of the IMG on par with that of the Central Government employees with effect from 1-1-1986. However, by Ext. P2 order, the Government revised the scale of pay only with effect from 1-1-1990. Challenging the same, the petitioners approached this Court by filing O.P.No. 12125//91 in which this Court directed the Government to consider the claim of the petitioners. Pursuant to the same, the petitioners filed Ext. P4 representation before the Government which has been rejected by Ext. P5, which is the order impugned in this original petition. 2. The contention raised by the petitioners is that primarily, the O.P. No. 10473/98 -: 2 :- Government had rejected their claim on the ground of financial stringency. According to the petitioners, going by the decision of the Supreme Court in K.T. Veerappa & Ors. v. State of Karnataka & Ors, (2006) 9 SCC 406, the Government cannot simply, on the basis of financial stringency, reject the claim for fixation of pay and determination of parity in scales of pay. They would point out that as per that decision, the Supreme Court has held that it is well settled that the courts should interfere with administrative decision 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 material and relevant factors. According to the petitioners, the said decision squarely applies to the facts of this case. They point out that when the Government had formed the IMG with the same organisational structure as that of Indian Institute of Management, the pay scales should also be comparable. When the scales of pay of the employees of the Indian Institute of Management had been revised with effect from 1-8-1986, identically situated employees of the IMG cannot be denied that benefit with effect from 1-1-1986 and the pay revision benefits cannot be restricted with effect from 1-1-1990. 3. The learned Government Pleader opposes the contentions of the petitioners with the help of a counter affidavit. According to him, the posts in IMG are not comparable with those of the Indian Institute of Management. The functions and duties of employees of the IMG and Indian Institute of Management are not comparable. The qualifications required are also fixed by the State Government and is not on par with that of the employees of the Indian Institute of Management. He would further point out that the AICTE norms are not applicable to IMG. The same are applicable to Indian Institute of Management and other institutions like Centre for Development O.P. No. 10473/98 -: 3 :- Studies, Centre for Earth Science Studies etc. with whom the petitioners want this Court to compare the scales of pay of the employees of the IMG. Learned Government Pleader would further point out that financial capacity is a relevant factor for deciding the issue as to whether or not with effect from what date the revision of scale of pay of employees of IMG has to be given effect to. Learned Government Pleader therefore supports the impugned order. 4. I have considered the rival contentions in detail. 5. Of late, the concept of equal pay for equal work has undergone a sea change because of various decisions of the Supreme Court. The Supreme Court has discouraged application of the principle of equal pay for equal work simply because the duties and functions attached to the posts in two different institutions are similar in nature. Although in the decision in K.T. Veerappa's case (supra), the Supreme Court has held that 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, the Supreme Court has, in various other decisions, laid down the parameters for applying the principles of equal pay for equal work. In Union of India & Anr. v. Manik Lal Banerjee, (2006) 9 SCC 643, the Supreme Court considered the question of applicability of financial implication in applying the principle of equal pay for equal work. Paragraph 26 of the said decision reads thus: “26. It is now a well-settled principle of law that financial implication is a relevant factor for accepting revision of pay. (See HEC Voluntary Retd. Emps. Welfare Soc. v. Heavy Engg. Corpn. Ltd., (2006) 3 SCC 708 and State of A.P. V. A.P. Pensioners' Assn. (2005) 13 SCC 161.” Again in State of W.B. & Anr. v. T.K. Ghosh & Ors, (2005) 10 SCC 339, the Supreme Court explained the importance of looking into the O.P. No. 10473/98 -: 4 :- qualitative difference of the work done between two comparable posts for the purpose of applying the doctrine of equal pay for equal work. In the decision of U.P. State Sugar Corpn Ltd., & Anr. v. Sant Raj Singh & Ors, (2006) 9 SCC 82, the Supreme Court held that the constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects and possession of a higher qualification can be treated to be a valid basis for classification of two categories of employees even if no such qualification is prescribed at the time of recruitment. 6. In this case, the reasons given by the 1st respondent for not treating the employees of IMG and those of the other institutions referred to by the petitioner have been explained in paragraphs 5 and 6 of the counter affidavit thus: “5. The Central assistance was also subject to the specific condition that the entire scheme of revision of pay scales together with all the conditions attached to it is implemented by the State Government as a composite scheme without any modifications, except the date of implementation and scales of pay. As regards the date of implementation and the scales of pay, Government of India made it abundantly clear that the State Governments, after taking local condition into consideration, may decide in their discretion to introduce scales of pay different from these mentioned in the scheme and may give effect to the revised scales of pay from January, 1986 or a later date. In Kerala, the UGC scheme was introduced with effect from 1.1.1986 by availing Central Assistance. That means the arrears of pay and allowances due to the teaching community consequent on the adoption of the UGC schemes was met by availing the Central assistance. As regards IMG, no composite schemes as envisaged in UGC or AICTE package has been adopted. There is no Central Assistance in the case of IMG. The positions of the Centre for Development Studies (CDS), Centre for Earth Science Studies (CESS) etc. are entirely different from that of IMG. The Centre for Development Studies is a recognized National Institute. It is also a Research Institute approved and supported by the Indian Council of Social Science and Research (ICSSR). The ICSSR is providing grants to the CDS on a continuing basis. The have revised the scales of pay of their academic staff on par with that of the UGC scales with the due approval of the ICSSR. 6. The ICSSR has also provided additional funds for payment of arrears of salary on revision of the scale of pay from 1.1.1986. The CESS has adopted CSIR grades, allowances and service conditions for the scientists and technical staff and that whenever changes occurs in the O.P. No. 10473/98 -: 5 :- CSIR, the changes are automatically made applicable to the CESS also. The Centre for Management Development is following UGC Scales of pay and Central disciplinary authority for the academic staff w.e.f. 1.6.1987. However, they are not eligible for other allowances such as CCA, LTA etc. With the adoption of the UGC Scales, the Centre has also discontinued the enhancement of privilege leave by its academic staff. IMG has got only trainers in its academic side. It is also not a Degree Level Technical Institution and does not come within the purview of AICTE. Te UGC package of Ministry of Human Resources Development is not applicable to institutions like IMG. Moreover, IMG is not following the criteria fixed in the UGC package in respect of qualifications, service conditions, workload, career advancement, promotion etc. On the other hand, IMG has its own recruitment policy and has prescribed its own standards of qualification and other criteria. As promised in the appointment letter, the Central rate of disciplinary authority and HRA are being given to the faculty member invariably. IMG is not getting any central financial assistance for payment of salary to staff. The entire funds towards salary and allowance of staff are provided by the State Government by way of Grand-in-aid. Therefore, the staff cannot claim as a matter of right to have their pay revised with effect from a specified date. It is well within the right of the State Government to decide the date from which the revised pay scales should be given effect to taking in to account the additional expenditure required for th purpose and its impact on the resources of the State Government. Further, it is simple logic that UGC scales in its entirety can be allowed only when the Schemes itself in its entirety i.e. regarding conditions of qualifications, workload, career advancement etc. are implemented.” Applying the ratio of the decisions referred to by me above, I am satisfied that the reasons given by the Government are quite reasonable and sustainable for taking the view that the employees of the two different institutions cannot be treated equally and the doctrine of equal pay for equal work cannot be applied in this case. In the above circumstances, I do not find any merit in the original petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/