IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 21619 of 2008(W) --------------------------------------- PETITIONER(S): ----------------------- DR.K.N.RAMACHANDRAN NAIR PUTHUVANA HOUSE, THALAYAR, KUTTOOR P.O., THIRUVALA TALUK, PATHANAMTHITTA DISTRICT BY ADV. MR.ABRAHAM SAMSON RESPONDENT(S): --------------------------- 1. UNION OF INDIA REPRESENTED BY THE DEFENCE SECRETARY, NEW DELHI. 2. CHIEF RECORD OFFICER OF O.I.C RECORDS ABHILEKH BENGAL ABHIYANTA SAMOOH, BENGAL ENGINEER GROUP RECORDS, PIN 900477,C/O. 56 APO. 3. THE OFFICER IN CHARGE CO-ORDINATION AND PERSONNEL DEPARTMENT/EIA,INTEGRATED HQ OF MOD ARMY, DHQ PO, NEW DELHI 110011 ADV. MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2009, THE COURT ON 04/03/2009 DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.21619 of 2008-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2009. JUDGMENT Aggrieved by the denial of higher pay, arrears of salary and denial of revision of pay, the petitioner has filed this writ petition. 2. The petitioner was a Subedar Major who enrolled himself in the service on 8.3.1960. He was discharged on 31.8.1988, after a total service of 28 years, 5 months and 24 days. While the petitioner was working as Subedar Major in Military Engineering Service, he was appointed as Assistant Garrison Engineer,Building/Roads in Garrison Engineer (Factory) B.M.P.No.1, Milaram, MedakDistrict, Andhra Pradesh and he retired from service on 31.8.1988. The crux of the issue raised by the petitioner is that he was denied salary for the post of Assistant Garrison Engineer, B/R and consequential pension. He was getting salary only in the cadre of Subedar Major. It is pointed out that he has been submitting various representations to the second respondent seeking to disburse the pay at the rate of last post held on the principles of equal pay for equal work. Ext.P2 is another representation. The same was answered by Ext.P3. But according to the petitioner, no discernible reasons have been pointed out wpc 21619/2008 2 therein and he submitted a further representation as Ext.P4. 3. Learned counsel for the petitioner relied upon various decisions of the Apex Court to contend that equal pay for equal work is a salutary principle and the denial of the same violates Articles 14 and 16 of the Constitution of India. Reliance is placed on the decision of the Apex Court in Randhir Singh v. Union of India and others (AIR 1982 SC 879), P.K. Ramachandra Iyer and others v. Union of India and others (AIR 1984 SC 541) and Union of India and another v. R.G. Kashikar and another (AIR 1986 SC 431). 4. The contentions raised in the counter affidavit are to the effect that the petitioner was promoted to the Rank of Sub Maj Group 'A' from Sub with effect from 3.8.1983. He was placed in pay scale of Rs.2200/- to 3175/- with effect from 1.1.1986 till his retirement as per Ext.R2(a). But the request for revision of pay scales was rejected. It is further submitted that by various communications, the petitioner's claim was rejected and they have been produced as Ext.R2(b) series. It is submitted that Sub Maj of Militarised cadre were discharging duties of AE prior to issuance of orders dated 1.2.1977 and 22.1.1988. True copy of the same is produced as Ext.R2 (c). It is submitted that this does not affect their Rank and status as well as wpc 21619/2008 3 pay scale. Hence demand for refixation of pay in the post held by him with effect from 3.8.1983 cannot be justified. 5. In the various decisions of the Apex Court relied upon by the petitioner, the principle of equal pay for equal work has been considered under varying circumstances. The principles were discussed after analysing the various factual details in respect of the posts in question. In Randhir Singh's case (AIR 1982 SC 879), the petitioner was a Driver-Constable in the Delhi Police Force under the Delhi Administration and he demanded that his scale of pay should at least be the same as the scale of pay of other drivers in the service of the Delhi Administration. Their Lordships held in para 6 that “it is true that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but where all things are equal, that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the wpc 21619/2008 4 nomenclature is the same.” The decision of the Apex Court in Union of India v. R.G. Kashikar and another (AIR 1986 SC 431) was one relating to the denial of the benefit of revision of pay scales to Instructors employed under the National Fitness Corps though there was a proposal for transfer of the establishment of the National Fitness Corps to the administrative control of the State Governments. They claimed revision of pay which was allowed in the case of other employees from 1967 to 1973. The actual transfer took place in the year 1976. The claim was upheld by the Apex Court. The facts herein are not similar. In P.K. Ramachandra Iyer's case (AIR 1984 SC 541), the existing Professors were denied a particular scale whereas revision of pay was allowed to Professors appointed as per the advertisement. It was held that the “the classification of existing incumbents as being distinct and separate from newly recruited hands with flimsy change in essential qualification would be wholly irrational and arbitrary.” The situation therein is totally different from the facts of these cases. 6. Herein, the petitioner has not placed on record the basic materials to assess whether he has been denied the actual pay for the post of Assistant Garrison Engineer. The petitioner has not chosen to produce either the order appointing him in the post of Assistant Garrison Engineer or the wpc 21619/2008 5 conditions under which such appointment was made and the scale of pay offered to him. He has not drawn any comparison with the scale of pay that was granted to him and to the scale of pay that was being given to other persons holding the post of Assistant Garrison Engineer. Therefore, materials are absent in this case as to whether he has been denied any benefit. In para 2 of the writ petition, the petitioner has produced certain details of scales of pay of different categories. But that alone will not be sufficient to decide his claim. The basic question is whether while serving as Asst. Garrison Engineer he was denied the benefit which was offered to him as that was being offered to the persons holding the same post in similar circumstances. Going by the counter affidavit, there was a revision of pay of Junior Commissioned Officers in the year 1986 and the petitioner was a beneficiary of the same. This is not disputed by the petitioner. It is further pointed out that as far as the post of Asst. Garrison Engineer is concerned, the Subedar Majors of Military Engineering Service who are discharging duties of Asst. Garrison Engineer will be holding the same rank and status as well as scale of pay. It is clear from the averments in the counter affidavit that the petitioner has already been placed in a scale of pay, i.e. 2200-3175 with effect from 1.1.1986 in accordance with Ext.R2(a). 7. Therefore, to apply the principle of equal pay for equal work, the wpc 21619/2008 6 petitioner should have demonstrated as to how he was deprived of the said benefit. Those details are absent in the writ petition filed by him also. Unless it is shown that a particular scale of pay was offered to him or persons similarly placed were having a higher scale of pay which was not disbursed to him, he may not be able to sustain his plea. But pleadings are absent in respect of these factors. There is nothing to show that for the post of Subedar Major and for the post of Asst. Garrison Engineer, separate scales of pay were being maintained by the respondents. No documentary evidence is produced in the writ petition. Even though a reply affidavit has been filed, therein also the petitioner has not chosen to elaborate these aspects. It is a case where he was holding a similar rank, but performing dissimilar functions, there cannot be a complaint of dissimilar pay. 8. Therefore, there are no materials to show that he was deprived of due salary in a particular scale of pay. Hence, no reliefs can be granted in this writ petition. 9. The replies given to the petitioner have been produced as Ext.R2 (b) series and Ext.R2(d) along with the counter affidavit. But no detailed reasons have been pointed out as to why his claim was rejected. It is not discernible from these letters also whether the petitioner was entitled for a higher pay when he was appointed as Asst. Garrison Engineer. True that in wpc 21619/2008 7 the counter affidavit they say that there was a revision of pay as per Ext.R2 (a) in respect of Subedar Majors in the year 1986. The respondents should have examined the matter more elaborately and should have given a detailed reply to the petitioner after examining the nature of the post, the scale of pay attached to it and the functions he was discharging in the said post. 10. Therefore, the writ petition is disposed of directing the competent among the respondents to give a detailed and reasoned order to the petitioner whether his claim is sustainable or not. The same should be with reference to the relevant Office Memorandums/rules governing the matter. An appropriate communication will be issued to him within a period of three months from the date of receipt of a copy of this judgment. (T.R. Ramachandran Nair, Judge.) kav/