IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:-06-01-2006 Coram: The Hon’ble Mr. Justice P. SATHASIVAM and The Hon’ble Mr. Justice CHITRA VENKATARAMAN Writ Petition No. 3824 of 2003 1. State of Tamil Nadu, represented by Secretary to Government, Rural Development Department, Secretariat, Chennai-9. 2. The Secretary to Government, Finance Department (Pay Cell), Fort St. George, Chennai-9. 3. The Director of Rural Development, Panagal Building, Saidapet, Chennai-15. .. Petitioners. Vs. 1. Tamil Nadu Arasu Uraga Kudineer Thitta Thozhil Nutpa Min Paniyalargal Sangam, by its State President A.N. Angamuthu, Manapparai Panchayat Unon Office, Manapparai, Tiruchi District. 2. The Registrar, Tamil Nadu Administrative Tribunal, Chennai-104. .. Respondents. Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari to call for records pertaining to order dated 11-6-2002 made in O.A.No. 1507/2001 on the file of Tamil Nadu Administrative Tribunal, Chennai/2nd respondent herein and quash the same. https://hcservices.ecourts.gov.in/hcservices/ Mr. D. Krishnakumar, Special Government Pleader:- For petitioner. Mr. P. Jayaraman, Senior counsel for Mr. G. Thangavel:- For 1st Respondent. ORDER (Order of Court was made by P. Sathasivam, J.,) Aggrieved by the order of Tamil Nadu Administrative Tribunal, Chennai dated 11-6-2002, made in Original Application No. 1507 of 2001, Rural Development Department, Finance Department and Director of Rural Development, Government of Tamil Nadu have preferred the above writ petition. 2. Tamil Nadu Arasu Uraga Kudineer Thitta Thozhil Nutpa Min Paniyalargal Sangam, first respondent herein, through its President A.N. Angamuthu filed the above Original Application praying for direction to the respondents therein (Rural Development and Finance Department) to implement G.O.Ms.No. 511, Finance (PC) Department dated 1-8-1992 and G.O.Ms.No. 468, Finance (Pay Cell) Department dated 31-8-1998 in order to revise the pay scale of the members of the applicant based on their representation submitted from the year 1994 onwards and also on 19-10-2000 to enable them to receive all consequential monetary benefits (vide amended prayer in O.A.No.1507/2001). According to the members of the applicant Association, they are employed as Electricians in the Rural Water Supply Power Pump Maintenance Wing in the Tamil Nadu Government. The pay scale of the members of the Association was Rs.275-475. Thereafter it was revised as 610-1075. Subsequently, the pay was revised as Rs.1100-1660 as per G.O.Ms.No.511 Finance (Pay Cell) Department dated 1-8-92. It is also their case that the same was followed by all the departments in the Tamil Nadu Government with effect from 1-6-88. In G.O. Ms.No. 666 Finance Department dated 27- 6-99, the revised scale of pay was confirmed. Since there was no favourable order by the Government, by revising their scale of pay as per their representation dated 6-7-99 and 16-10-2000, they approached the Tribunal for necessary direction as stated above. 3. It is seen from the order impugned, the Tribunal ordered Notice of Motion on 28-3-2001. The respondents/departments have not filed reply conveying their stand. The Tribunal in the absence of reply by the department concerned, by relying on G.O.Ms.No. 511 Finance Department dated 1-8-92 and after finding that the uniform pay fixed under the Government Order cannot be denied to the members of the applicant, directed that they shall be given the scale of pay as per G.O.Ms.No. 511, Finance (Pay Cell) Department dated 1-8-92 and G.O.Ms.No. 468, Finance (Pay Cell) Department, dated 31-8-98 by revising their pay scales with effect https://hcservices.ecourts.gov.in/hcservices/ from the year 1994 and also directed that the arrears shall be paid after such re-fixation within a period of 6 months from the date of its order. The said order is under challenge in this writ petition. 4. Heard Mr. D. Krishnakumar, learned Special Government Pleader for petitioners and Mr. P. Jayaraman, learned senior counsel for first respondent-Sangam. 5. The only point for consideration in this writ petition is, whether the order of the Tribunal issuing direction for revising the scale of pay as per G.O.Ms.No.511 Finance Department dated 1-8-92 and G.O.Ms.No. 468 Finance Department dated 31-8-98 is sustainable? 6. Before considering the above issue, it is to be noted that the department, namely, Rural Development and Finance Department (Pay Cell) have not filed reply affidavit conveying their stand before the Tribunal. In such a circumstance, the Tribunal without analysing the claim of the applicant Sangam, basing reliance on G.O.Ms.No. 511 Finance Department, dated 1-8-92, issued positive direction for revision of scale of pay to the members of the Association. 7. Before the Tribunal, it was the specific case of the Association that the pay scale for the members of the Association was initially fixed in the pay scale of Rs.275-475 and thereafter it was revised as Rs.610-1075 as per G.O.Ms.No. 184 Finance Pay Cell Department dated 21-2-1990. Subsequently, the above pay scale was revised as Rs.1100-1660 as per G.O.Ms.No. 511 Finance (Pay Cell) dated 1-8-1992 and the same was followed by all the Department concerned in Tamil Nadu Government with retrospective effect from 1- 6-1988 as it has been specifically stipulated-vide G.O.Ms.No. 666 Finance Department dated 27-6-1989 that the effective date of revised pay scale was asserted and confirmed as 1-6-1988. Though the Department has not filed reply before the Tribunal controverting the factual details, in the affidavit filed before this Court, it is specifically stated that the information furnished by the applicant- Association are factually incorrect. It is the case of the Department that Fourth Pay Commission has recommended the revision of pay for the post of Electrician in the Rural Development Department as Rs.505-845 against the pre-revised scale of pay of Rs.295-475. Subsequent to the issue of Fourth Tamil Nadu Pay Commission orders, employees of various associations have expressed their dissatisfaction in the scales of pay allowed by the Fourth Pay Commission. Based on the requests of persons concerned, the Government have constituted “One Man Committee”. The One Man Committee while examining the requests for employees in various trade posts like Electrician, Fitter, Welder etc., in various departments has noticed that no uniform pattern has been followed in prescribing technical qualification for those posts. The minimum qualification for admission to ITI course is SSLC passed or failed https://hcservices.ecourts.gov.in/hcservices/ depending on the trade. The One Man Committee was of the view that with the availability of ITI holders, the qualification of ITI Certificate should be invariably adopted for all trade posts in all departments. The Committee considered that the trade posts might be classified broadly into two groups based on the qualifications prescribed for the posts granting the pay scales as: i) SSLC passed plus I.T.I .. Rs.610-1075 ii) SSLC failed plus I.T.I. .. Rs.555-970 It is the definite case of the Department that for the post of Electrician, no revision was made based on the recommendation of the One Man Committee till the constitution of Fifth Pay Commission. It is also their case that while recommending the revised scale of pay for the said post by the Fifth Pay Commission, the post was placed on Rs.825 – 1200 against the pre-revised scale of pay of Rs.505-845 on par with Group II trade posts and also the recommendation made in the previous Pay Commission. Subsequently, the Government have examined the request and orders were issued revising the scale of pay from Rs.825-1200 to Rs.950-1500 on par with that of Group I trade post and also the revision was made in the previous Pay Commission from Rs.505-845 to Rs.610-1075 with effect from 1-10-84. By pointing out the above details, it is the case of the petitioners that there is no injustice caused to the said category. 8. Coming to G.O.Ms.No. 511 Finance (Pay Cell) Department dated 1-8-1992, the post of Electrician in the Rural Development Department is sanctioned with the scale of Rs.950-1500 on par with that of trade posts. Learned Special Government Pleader appearing for the petitioners has brought to our notice G.O.Ms.No. 141 Rural Development (P3) Department dated 3-8-95 which clearly shows that at the time of creation of 384 posts of Electrician, sanction was accorded in the scale of pay of Rs.950-20—1150-25-1500. 9. It is brought to our notice that the scale of pay for the post of Electrician in the Rural Development Department was already revised as Rs.950-1500 based on the qualification for the post which is SSLC plus I.T.I in which post is equivalent to Grade II trade posts. The Government have issued orders for the revision of scale of pay for the post of Electrician in the Rural Development from Rs.505-845 to Rs.610-1075 in the pre-revised scale of pay taking note of the qualification prescribed for the post of Electrician is SSLC with I.T.I as it falls under Group I. In such a circumstance, as rightly pointed out by the learned Special Government Pleader, the question of revising the scale of pay for the post of Electrician from Rs.950—1500 to Rs.1100-1660 does not arise as it is already equivalent to Grade II trade posts since there is no Grade I trade post in Rural Development Department. https://hcservices.ecourts.gov.in/hcservices/ 10. It is also brought to our notice that in the case of the post of Electrician, no revision was made based on the One Man Committee recommendation till the constitution of the Fifth Pay Commission. Only in the Fifth Pay Commission, the post of Electrician was placed on Rs.825-1200 against the pre-revised scale of pay of Rs.505-845 on par with Group II trade posts. Subsequently, the Government have examined the request of the Association and orders were issued revising the scale of pay from Rs.825-1200 to Rs.950-1500. It is true that orders were issued in G.O.Ms.No. 511, Finance (PC) Department dated 1-8-92 stating that all Grade-II trade posts such as Wiremen, Plumber, Carpenter, etc., hitherto classified under Group II in G.O.Ms.No. 762, Finance (PC) Department dated 20-8-86 requiring I.T.I. certificate irrespective of academic qualification be allowed the scale of pay of Rs.950-1500 and all such Grade-I posts coming under this category be allowed the scale of pay of Rs.1100-1660. It is demonstrated before us that the post of Electrician in the Rural Development Department was sanctioned with the scale of Rs.950-1500 on par with that of trade posts (vide G.O.Ms.No. 141 Rural Development Department dated 3-8- 95). Unfortunately, this relevant information was not brought to the notice of the Tribunal. As pointed out earlier, it is the definite case of the Department that though the nomenclature of the post, namely, Electrician is the same in all departments, it is their categorical stand that the Electrician post in the Rural Development Department is Grade II category post and according to them, there is no Grade I post. However, as rightly pointed out, in G.O.Ms.No. 511 dated 1-8-92, the Government have directed that all Grade II trade posts such as Wiremen, Plumber, Carpenter, etc., hitherto classified under Group II in G.O.Ms.No. 762, Finance (PC) Department dated 20-8-86 requiring I.T.I. certificate irrespective of academic qualification be allowed the scale of pay of Rs.950-1500 and all such Grade I posts coming under this category be allowed the scale of pay Rs.1100-1660. In the Sixth Pay Commission the existing scale of pay of Rs.950-1500 was changed into Rs.3050-4590. 11. It is also brought to our notice that the direction of the Tribunal cannot be implemented since in G.O.Ms.No. 468 Finance (PC) Department 31-8-98, the Government revised the scale of pay only to Electrician-Grade I post and not to Grade-II. The perusal of the said Government Order which is available at page 13 of the additional typed-set of papers filed by the Special Government Pleader, makes it clear that after accepting the recommendation of the Official Committee and after examination, the Government revised the scale of pay only to Grade I Electrician and not Grade II. In such a circumstance, as rightly pointed out, the question of revising the scale of pay for the post of Electrician does not arise and G.O.Ms.No. 468 Finance Department dated 31-8-98 is not applicable to the Grade II posts. We have already pointed out the definite stand of the Department that there is no Grade I post in Rural Development, and this relevant fact was neither placed before the Tribunal nor considered by it. https://hcservices.ecourts.gov.in/hcservices/ 12. Mr. P. Jayaraman, learned senior counsel appearing for the first respondent, relied on several decisions, namely, (i) Y.K. MEHTA v. UNION OF INDIA [1988 (Supp) Supreme Court Cases 750]; (ii) BHAGWAN SAHAI CARPENTER v. UNION OF INDIA [(1989) 2 Supreme Court Cases 299] (iii) F.C.I. WORKERS’ UNION v. F.C.I [AIR 1990 Supreme Court 2178] (iv) SANDEEP KUMAR v. STATE OF U.P. [1993 Supp (1) Supreme Court Cases 525] and (v) UNION OF INDIA v. BIJOY LAL GHOSH [AIR 1998 Supreme Court 1192] to show that when posts in two wings of the same Government department are identical and involve same nature of duties, denial of parity in pay would be violate of Articles 14, 16 and 39 (d) of the Constitution of India. Absolutely there is no quarrel with regard to the proposition laid down in those decisions. As pointed out by the department, there is no Grade I trade post in Rural Development Department and according to them, the post of Electrician in the said department is Grade II trade post. In such a circumstance, we are of the view that the decisions relied on by the learned senior counsel for the first respondent are not directly applicable to the case on hand. 13. In the earlier part of our order, we have referred to the fact of non-filing of reply by the department. It is true that in spite of affording sufficient opportunity, unfortunately the department did not file their defence before the Tribunal and even at the time of argument, relevant information was not brought to its notice. In this regard, it will be useful to refer a decision of the Supreme Court in STATE OF HARYANA v. HARYANA CIVIL SECRETARIAT PERSONAL STAFF ASSOCIATION, reported in (2002) 6 Supreme Court Cases 72 wherein Their Lordships have held that while exercising jurisdiction under Article 226 of the Constitution, the relief cannot be granted merely because averment in writ petition had not been specifically rebutted and High Court is bound to consider the averment on its true merits before granting relief to writ petitioner. After referring to the decision in the case of SECRETARY, FINANCE DEPARTMENT v. W.B. REGISTRATION SERVICE ASSOCIATION (1993 Supp (1) SCC 153), it was held: (para 10) “10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a https://hcservices.ecourts.gov.in/hcservices/ relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justifiable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same…..” In this regard, it is useful to refer the comparative table furnished by the learned Special Government Pleader regarding the qualification and regulation of Electricians in TWAD Board and Tamil Nadu Rural Development Department. COMPARATIVE TABLE 1) QUALIFICATION AND REGULATION OF ELECTRICIANS IN TWAD BOARD IN RURAL DEVELOPMENT DEPARTMENT. ELECTRICIAN GRADE-I ELECTRICIAN By promotion Experience as 1. Must have completed Electrician SSLC, and Grade II for a 2. Must possess Indus- period of not less trial Training than three years. Institute Certificate in the Trade of Electrician with two years of experience in the Electrical work. https://hcservices.ecourts.gov.in/hcservices/ By Direct 1. Must have passed G.O.270,Rural recruitment SSLC or its Development Depart- or recruitment equivalent. ment dated 21-12- by transfer 1992. 2. Must possess ITI certificate 3. Practical experience for a period of not less than 2 years. ELECTRICIAN GRADE.II By Direct 1. Must have passed recruitment VIIIth Standard in or recruitment a recognised School. by transfer. 2. Must possess ITI Certificate in the Trade of Electrician with two years experience in the type of work. 2) NATURE OF DUTIES AND RESPONSIBILITIES OF ELECTRICIANS. In TWAD Board In RURAL DEVELOPMENT DEPARTMENT The Electricians should be Maintenance of power available in the Pump Room pumps in Panchayat during entire duty time and Union areas. watch the running of pumpset duly noting the Volt Meter, Ammeter, power cut etc., and maintenance of Log Books. His work will be highly risky and responsible where compared with the work of fitters. Further, the pumpsets provided with H.T. Supply and various Electrical installations are also provided as per I.E Rules and the Electricians should give more attention in maintaining the pumping plants. https://hcservices.ecourts.gov.in/hcservices/ 3) SCALE OF PAY OF ELECTRICIAN In TWAD Board In RURAL DEVELOPMENT DEPARTMENT. In III Pay Commission In III Pay Commission ELECTRICIAN Grade I ELECTRICIAN 325-10-445-15-550 295-5-315-10-475 ELECTRICIAN Grade II 295-5-315-10-475 In IV Pay Commission In IV Pay Commission ELECTRICIAN Grade I ELECTRICIAN 610-1075 555-970 ELECTRICIAN GRADE II 555-970 In V Pay Commission In V Pay Commission ELECTRICIAN GRADE I ELECTRICIAN 1100-1660 950-1500 ELECTRICIAN GRADE II 950-1500 In VI Pay Commission In VI Pay Commission ELECTRICIAN GRADE I ELECTRICIAN 4000.6000 3050-4590 ELECTRICIAN GRADE II 3050-4590 4) FINANCIAL POSITION In TWAD BOARD In RURAL DEVELOPMENT DEPARTMENT https://hcservices.ecourts.gov.in/hcservices/ By Departmental Code Salary paid from revolving fund/ Panchayat Union General Fund.” In the light of these details, by applying the ratio laid down in the above referred decision, we are satisfied that the Tribunal is not justified in issuing positive direction granting a particular scale of pay and compelling the Government to implement the same. 14. In UNION OF INDIA v. TARIT RANJAN DAS, reported in 2003 AIR SCW 7082, Their Lordships have quoted the following passage as expressed by three Judge Bench of the Supreme Court in STATE BANK OF INDIA v. M. GANESH BABU (2002 (4) SCC 556) at para 16: (para 7) “The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organisation. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected to an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.” https://hcservices.ecourts.gov.in/hcservices/ In para 9, the Court held that, “9… The person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work alone. There are several other factors like, responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy, the qualifications required which are equally relevant.” Para 11 of the judgement is also relevant: “11. In the case of State of U.P. v. J.P. Chaurasia [1989 (1) SCC 121] it was pointed out that whether two posts are equal or should carry the equal pay, depends on several factors. It was not depend just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts by the Competent Authorities constituted for the purpose and Courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best Judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. v. Pramod Bhartiya [1993 (1) SCC 539] by a three-Judge Bench of this Court. In the case of Shyam Babu Verma v. Union of India [1994 (2) SCC 521] a claim for equal pay by a group of Pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable.” 15. From the materials furnished by the Department, we are satisfied that the post of Electrician in the Rural Development Department is sanctioned with the scale of Rs.950-1500 on par with that of trade post, namely, Grade II and that there is no Grade I trade post in that department. We have already referred to the fact that in G.O.Ms.No. 468 Finance dated 31-8-98, scale of pay was revised only to Grade I post and not Grade II. We also referred to qualification, nature of work being performed in TWAD Board as well as in Rural Development Department. As stated in (2002) 6 Supreme Court Cases 72 (cited supra), though the Department failed to place all the above mentioned relevant facts before the Tribunal, it is the bounden duty of the Tribunal to consider the averments in the https://hcservices.ecourts.gov.in/hcservices/ petition filed by the Association on its true merits before issuing such positive direction. Even in the application filed before the Tribunal, the Association has not highlighted their entitlement except referring to G.O.Ms.No. 511, Finance Department, dated 1-8- 92. We are satisfied that the Tribunal has committed an error in not considering all the relevant materials. 16. In the light of what is stated above, the order of the Tamil Nadu Administrative Tribunal dated 11-6-2002 made in O.A.No. 1507 of 2001 is quashed and the Writ Petition is allowed. No costs. 06-01-2006