IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:-27-01-2006 Coram:- The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.K. KRISHNAN Writ Petition Nos. 4384 of 2003 and 29076 of 2004 W.P.No. 4384 of 2003 Tamil Nadu Veterinary Assistant Surgeons Association, Chennai, represented by its General Secretary Dr.M. Om Murugan. .. Petitioner. Vs. 1. The State of Tamil Nadu, represented by its Secretary to Government, Finance (C.M.P.C.) Department, Fort St. George, Chennai-9. 2. The State of Tamil Nadu, represented by its Secretary to Government, Animal Husbandry Department, Fort St. George, Chennai-9. 3. The Registrar, Tamil Nadu Administrative Tribunal, High Court Complex, Chennai-104. .. Respondents. W.P.No. 29076 of 2004 P. Ravichandran. .. Petitioner. Vs. 1. The Director of Veterinary Services, Central Office Buildings, Block II, Teynampet, Chennai-2. 2. The Secretary to Government, Animal Husbandry and Fisheries Department, Secretariat, Fort St. George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 3. The Secretary to Government, Finance Department, Secretariat, Fort St. George, Chennai-9. 4. The Registrar, Tamil Nadu Administrative Tribunal, High Court Complex, Chennai-104. .. Respondents. Writ Petitions filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorarified Mandamus, (i) to call for records of 3rd respondent/Tamil Nadu Administrative Tribunal in O.A.No. 3940 of 2001 dated 29-10-2002 and quash the same and to direct the first respondent herein to grant the pay and allowances to the members of petitioner Association- Veterinary Assistant Surgeons in the scale of pay of Rs.8000-275- 13500 with 25 per cent of non practising allowance on the basic pay with effect from 1-1-1996 and the consequential arrears thereof; and (ii) to call for records of 3rd respondent/Government in Order No. G.O.Ms.No. 162 Finance (Pay Cell) Department, dated 13-4- 98 in so far as fixing the scale of pay for veterinary Assistant Surgeons at Rs.6500-11,100/- scale instead of Rs.8000-275-13500 scale and the consequential order passed by Tamil Nadu Administrative Tribunal in O.A.No. 3594 of 1999 along with other batch cases dated 29-10-2002, quash the same and to direct the 1st, 2nd and 3rd respondents herein to grant the pay and allowances of the Veterinary Assistant Surgeons on par with that of their counter-part in Central Government (i.e) pay of Rs.8000-275-13,500 with effect from 1-1-96 with all consequential benefits thereon. Mr. N.G.R. Prasad for Mr.G. Purushothaman:- For petitioner in both W.Ps. Mr.R. Muthukumarasamy, Addl. Advocate General assisted by Mr. E. Sampathkumar, Govt., Advocate:- For Respondents 1 and 2 and Respondents 1 to 3 respectively. COMMON ORDER (Order of Court was made by P. Sathasivam, J.,) Tamil Nadu Veterinary Assistant Surgeons Association, Chennai through its General Secretary Dr. M. Om Murugan has filed https://hcservices.ecourts.gov.in/hcservices/ W.P.No. 4384/2003 for quashing of the order of Tamil Nadu Administrative Tribunal, Chennai dated 29-10-2002, made in Original Application No. 3940 of 2001 and for consequential direction to the first respondent/Secretary to the Government, Finance (CMPC) Department, Chennai-9 to grant pay and allowances to the members of the petitioner Association-Veterinary Assistant Surgeons in the scale of pay of Rs.8000-275-13500 with 25 per cent of non-practising allowance on the basic pay with effect from 1-1-1996 and consequential arrears thereof. 2. One P. Ravichandran of Dindigul-1 has filed W.P.No. 29076 of 2004 for issuance of a Writ of Certiorarified Mandamus to call for records of the Secretary to the Government, Finance Department, Chennai-9 in G.O.Ms.No. 162 Finance (PC) Department dated 13-4-98 in so far as fixing the scale of pay for Veterinary Assistant Surgeons at Rs.6500-11100/- scale instead of Rs.8000-275- 13500 scale and the consequential order passed by the Tamil Nadu Administrative Tribunal in O.A.No. 3594 of 1999 along with other batch cases dated 29-10-2002 and quash the same and direct the respondents 1 to 3 herein to grant the pay and allowances of the Veterinary Assistant Surgeons on par with that of their counter part in Central Government i.e., pay of Rs.8,000-275-13,500 with effect from 1-1-96 with all consequential benefits thereon. 3. Since the first writ petition is by the Association, the second one by individual and the claim made in both the writ petitions is one and the same, they are being disposed of by the following common order. For convenience we shall refer the details as stated in the writ petition filed by the Tamil Nadu Veterinary Assistant Surgeons Association. According to them, it is a recognised Association by the Government of Tamil Nadu in G.O.Ms.No. 968, Development Department dated 21-5-1924. The petitioner Association is espousing the common cause of Veterinary Assistant Surgeons working in Tamil Nadu. The prescribed qualification for the post of Veterinary Assistant Surgeon is B.V.Sc., or B.V.Sc., and Animal Husbandry. The duration of the course if 4 ½ years study plus 6 months Internship. Selection process is through Tamil Nadu Public Service Commission. Registration of the Degree is compulsory with the Tamil Nadu Veterinary Council. Authorised to attend in-patients and out-patients and to attend out break of diseases of animals. Authorised to issue health certificates and postmortem certificates. Authorised to give evidence as experts under Indian Evidence Act before the Court of law. Their services are categorised as essential service, hence they work throughout the year including Sundays and Government holidays. 4. In the First Pay Commission in Tamil Nadu, the basic pay fixed for Civil Assistant Surgeons and Dental Surgeons was Rs.300-575 whereas for Sidha Doctors and Veterinary Assistant https://hcservices.ecourts.gov.in/hcservices/ Surgeons was Rs.225-425. In the second pay commission in the year 1969, basic pay fixed for Civil Assistant Surgeons and Dental Surgeons was Rs.525-25-600-30-690-35-900, for Sidha Doctors was Rs.400-650 and after agitation it was revised to Rs.425-20-525-25- 700 at par with Veterinary Assistant Surgeons. In the third pay commission in the year 1974, basic pay fixed for Civil Assistant Surgeons and Dental Surgeons was Rs.750-50-1350, for Sidha Doctors and Veterinary Assistant Surgeons was Rs.600-30-750-35-890-40-1050. In the fourth pay commission in the year 1979, basic pay fixed for Civil Assistant Surgeons, Dental Surgeons, Sidha Doctors and Homeopathy Doctors was Rs.1340-2435 whereas Veterinary Assistant Surgeons were alone signed out with a lesser basic of Rs.1160-1950. During the fifth pay commission it was accepted and placed by the State Government that Veterinary Assistant Surgeons of State Government are kept at par in scale of pay with Veterinary Assistant Surgeons of Central Government and accepted to keep the same in a scale of Rs.2000-60-2300-75-3200-100-3500. 5. There is a pay disparity with that of their counterpart in the Central Government due to scale to scale fixation by the State Government instead of cadre to cadre in G.O.Ms.No. 162 Finance (P.C) Department dated 13-4-1998. The petitioner Association made representations to the Government to redress their grievances. The qualifications prescribed for appointment to the post of Veterinary Assistant Surgeon is B.V.Sc., and recognised by the Government of India. The qualification prescribed for appointment to the post of Veterinary Assistant Surgeon in Government of India is equal and the same as prescribed in Government of Tamil Nadu i.e., B.V.Sc. 6. The Government of Tamil Nadu in G.O.Ms.No. 666, Finance (P.C) Department dated 27-6-89, accepted the recommendations of the Commission constituted for that purpose which has recommended Central Government scale of pay. The Government in G.O.Ms.No. 414, Finance (P.C) Department dated 31-7-97, constituted an official committee to examine the question of revision of scale of pay and allowances of State Government employees and teachers based on the decision of the Central Government on the recommendation of the V Central Pay Commission and make necessary recommendations regarding the extension of the pay scale to State Government Employees and Teachers as has been given by the Central Government Employees in pursuant to V Central Pay Commission. The Official Committee has recommended the same scale of pay of Central Government of Employees to the State Government Employees in respect of many categories and the same was accepted by the State Government vide G.O.Ms.No. 162, Finance (P.C) Department dated 13-4-98. But unfortunately, Veterinary Assistant Surgeons were not granted pay parity with that of their counterpart working in other departments in the State Government and the Central Government. https://hcservices.ecourts.gov.in/hcservices/ 7. The Veterinary Assistant Surgeons are to be promoted to Selection Grade post equivalent to Assistant Director post after 10 years of service and promoted to Special Grade posts equivalent to Deputy Director post after 20 years of service. Both the posts are not by direct recruitment but only through promotions. Therefore, Veterinary Assistant Surgeons at a basic of Rs.6,500-250- 11,100 at entry level, on attaining selection grade equivalent to Assistant Director after 10 years of service, basic pay will cross the scale of Rs.9,100-15,500 instead of Rs.8000-275-13,500. But an anomaly is artificially created by putting a rider whichever is lesser. If the pay scale is upgraded to Rs.8000-275-13,500 for Veterinary Assistant Surgeons, there will not be any anomaly at all. 8. Since the Government did not take any steps to fix the scale of pay at par with that of their counterpart in Central Government, they have preferred Original Application No. 3940/2001 before the Administrative Tribunal. Unfortunately, the Tribunal by the impugned order and on an erroneous view, dismissed their application. In the same order, the Tribunal has also dismissed other applications filed by individual Veterinary Assistant Surgeons. Hence the present writ petitions. 9. Heard Mr. N.G.R. Prasad, learned counsel for the petitioners and Mr. R. Muthukumarasamy, learned Additional Advocate General for official respondents. 10. The only point for consideration in these writ petitions is, whether the Veterinary Assistant Surgeons working in Animal Husbandry Department are entitled to pay and allowances in the scale of pay of Rs.8000-275-13,500 as claimed, and whether the Tribunal is right in dismissing their application for the same. 11. It is the claim of the petitioners before the Tribunal as well as before this Court that inasmuch as the pay and allowances fixed for the Veterinary Assistant Surgeons working in various departments in the Central Government is Rs.8,000-275-13,500 as fixed by the Fifth Pay Commission of the Central Government and of the fact that there was no pay commission for the employees of the Government of Tamil Nadu after the Fifth Pay Commission and that only the official committee constituted to go into the methods of the pay scales of the employees of the Tamil Nadu pursuant to the Pay Commission report of the Central Government, the pay and allowances fixed for Veterinary Assistant Surgeons, namely, members of the petitioner Association in the scale of Rs.6500-200-11,000 pursuant to G.O. No.162, Finance (P.C) Department, dated 13-4-1998 cannot be sustained and they are also entitled pay and allowances at the rate of Rs.8,000—275—13,500 as fixed for Veterinary Assistant Surgeons working in Central Government. It is also their claim that https://hcservices.ecourts.gov.in/hcservices/ the qualification for appointment to the post of Veterinary Assistant Surgeon both in the Government of Tamil Nadu and in the Central Government are one and the same and the required basic qualification is B.V.Sc., and Animal Husbandry. Mr. N.G.R. Prasad by drawing our attention to the categories of officers constituted in Tamil Nadu Veterinary Surgeons and the service rules relating to the post of Veterinary Assistant Surgeons in Central Government, would submit that the method of appointment, qualifications, responsibilities and functions are in many aspects qualitatively similar and in view of the policy decision of the Government of Tamil Nadu, the members of the petitioner Association should be granted the equal pay and non-praticing allowances as has been granted to their counterpart on the ground that they are performing identical duties and responsibilities. He also pointed out that even though their counterparts namely M.B.B.S., B.D.S., B.S.M.S., Homeopathy working in other departments in the Government of Tamil Nadu are provided with the scale of pay of Rs.8,000-275-13,500, the members of the petitioner Association are granted with the scale of pay viz., Rs.6,500-200-11,100 i.e., one stage lower. According to him, this is illegal and against the policy decision taken by the Government of Tamil Nadu in the matter of pay fixation. 12. As against the above claim, the Government in their reply affidavit before the Tribunal as well as counter affidavit in this Court explained that prior to the official committee (1998), the post of Veterinary Assistant Surgeon was all along one level below that of members working in various medical departments with M.B.B.S., qualification. Prior to the official committee, the scale of pay for the post of Veterinary Assistant Surgeons was Rs.2,000— 3,500 and that of the post of Civil Assistant Surgeon was Rs.2,200- 4000. The official committee had recommended corresponding revised scale of pay taking note of the pre-revised scale of pay for the post of Veterinary Assistant Surgeons as Rs.6500-11100 and also for the post of Civil Assistant Surgeons as Rs.8000-13500. According to them, the pay parity prevailing in the pre-revised scale has been continued, after the official committee recommendations also, i.e., one level below that of Civil Assistant Surgeon. Mr. R. Muthukumarasamy, learned Additional Advocate General has also brought to our notice that the Central Pay Commission has recommended that the entry level of Assistant Director possessing B.V.Sc., Degree qualification be granted the revised scale of pay of Rs.8000-13500 and the Surgeons working in the Offices are designated as Assistant Directors and those working in the field level are called Veterinary Assistant Surgeons. It is also pointed out that in the State Government, the post of Assistant Director is already granted Central scale of pay of Rs.8000-13500. It is also the claim of the respondents that the post of Assistant Director is the promotion post for the post of Veterinary Assistant Surgeons. Hence, it is pointed out that the entry level post namely Veterinary https://hcservices.ecourts.gov.in/hcservices/ Assistant Surgeon is placed one level below that of Assistant Director of Animal Husbandry, i.e., Rs.6500-11,100. It is also brought to our notice that the post of Veterinary Assistant Surgeon in State Government is already on par with that of Assistant Engineer and Agricultural Officer. The qualification prescribed for these posts are B.E., and M.Sc.,/B.Sc., (Agri) respectively. Mr. R. Muthukumarasamy, learned Additional Advocate General also pointed out that any deviation made in respect of the Veterinary Assistant Surgeon alone will dislocate the horizontal relativity maintained in the State. It is his further claim that the post of Veterinary Assistant Surgeons are all along on par with that of the Engineering Graduates and Agricultural Graduates, etc. 13. It is also pointed out by the learned Additional Advocate General that educational qualification cannot be the sole determinant of pay structure to the exclusion of other job factors. It is further pointed out that the workload and the responsibilities of the Civil Assistant Surgeons are definitely more onerous than that of the Veterinary Assistant Surgeons. In this regard, it is useful to mention the recommendation of the third Tamil Nadu Pay Commission which reads as under: "69. The Tamil Nadu Veterinary Assistant Surgeons' Association has very strongly urged for parity between the pay scales of the Veterinary Assistant Surgeons and Civil Assistant Surgeons on the ground that the length and rigour of the academic course of both the categories were the same. We would like to point out again that educational qualifications cannot be the sole determinant of the pay structure to the exclusion of other job factors. The workload and responsibilities of the Civil Assistant Surgeons are definitely more onerous than that of the Veterinary Assistant Surgeons. In this context, we would like to refer to the observations of the Second Pay Commission that the duties and responsibilities of a medical officer are certainly more valuable and the training, knowledge and skill to be acquired by them are of a greater order (Chapter XIX, paragraph VIII, page 106). We agree with this view and feel that there is no reason to interfere with the existing differential between these two categories." It is also brought to our notice that the Fourth, Fifth Pay Commissions and also official committee, 1998 have also recommended the corresponding revised scale of pay for the post of Veterinary Assistant Surgeons one level below that of Civil Assistant Surgeon. 14. Regarding stagnation in the post of Veterinary Assistant Surgeons, it is pointed out that persons in the post https://hcservices.ecourts.gov.in/hcservices/ beyond 10 years are eligible for movement to selection grade scale of Rs.8000-13500 and after completing 10 years in Selection Grade are eligible to movement to Special Grade of Rs.10,000 – 15,200. It is also brought to our notice that in G.O.Ms.No. 562, Finance, dated 28-9-98, stagnation increment was also sanctioned with effect from 1-9-98 as an incentive to those employees who have completed 10 years of service in the Special Grade post. It is further pointed out that the said scheme of Selection Grade and Special Grade and sanction of bonus increment to employees in State Government are more liberal and in the Government of India, the scheme of time bound upgradation has been sanctioned only on completion of 12/24 years of service; hence, according to them, there is no discrimination made to the category of Veterinary Assistant Surgeons alone. 15. The following Comparison Table in respect of Veterinary Assistant Surgeons, Assistant Engineer, Agricultural Officer and Assistant Civil Surgeons are relevant for our consideration: COMPARISON OF PAY SCALES IN VARIOUS PAY COMMISSIONS Pay Commissions Veterinary Assistant Surgeon Assistant Engineer Agricultural Officer Assistant Civil Surgeon Second Pay Commission with effect from 1-10-70 425-700 425-700 400-700 525-900 Third Pay Commission with effect from 1-4-1978 600-1050 600-1050 600-1050 750-1350 Fourth Pay Commission with effect from 1-10-1984 1160-1950 1160-1950 1160-1950 1340-2430 https://hcservices.ecourts.gov.in/hcservices/ Pay Commissions Veterinary Assistant Surgeon Assistant Engineer Agricultural Officer Assistant Civil Surgeon Fifth Pay Commission with effect from 1-6-1988 2000-3500 2000-3500 2000-3200 2200-4000 Official Committee with effect from 1-1-1996 6500-11100 6500-11100 6500-11100 8000-13500 COMPARISON OF VETERINARY ASSISTANT SURGEON AND ASSISTANT CIVIL SURGEON. Details Assistant Civil Surgeon Veterinary Asst., Surgeon Duties and Responsibilities More onerous Health care of human being and treating diseases through Medicine and Surgery intensive care of patients in critical conditions and take care of patients met with accidents etc., Not More onerous. He is in-charge of Veterinary Sections of live stock farms artificial insemination and key village centres Allowances Allowed Non-practicing Allowance Allowed Risk Allowances https://hcservices.ecourts.gov.in/hcservices/ Details Assistant Civil Surgeon Veterinary Asst., Surgeon Special Qualification Specialist should have also posses Diploma Qualifica- tion in the respective field in various discipline along with M.B.B.S Qualifications No such is Specialist Qualifications COMPARATIVES STATEMENT Details Government of India State of Tamil Nadu Qualifications B.V.Sc., B.V.Sc., Appointment as Assistant Director Veterinary Assistant Surgeon Assistant Director Entry Level Rs.8000—13,500 Second Level Rs.8000-13,500 i.e., Promotion post to Veterinary Asst., Surgeons Selection Grade Pay Scales Not provided in the Central Scales of Pay Selection Grade Pay Scale available on completion of 10 years of service at Rs.8000- 13,500 for Veterinary Asst. Surgeon It is clear that the educational qualification cannot be the sole determination for fixing the pay structure. Further, the work-load and responsibilities of Civil Assistant Surgeons and Doctors of Indian Medicine are more onerous than those of Veterinary Assistant Surgeons. The scale of pay of Assistant Director in the Animal Husbandry Department is already on par with that of similar post in Government of India. 16. Now let us consider the relevant rules, namely, sub- rules for the Tamil Nadu Animal Husbandry Service: https://hcservices.ecourts.gov.in/hcservices/ RULES 1. CONSTITUTION:-The service shall consist of the following classes and categories of posts,namely:- CLASS I xx xx xx CLASS IV Category-1 Assistant Director of Animal Husbandry Specialist (Livestock) including Assistant Director of Animal Husbandry Specialist (Disease investigation) Superintendent of Farms: Clinician, Veterinary Officer, Officers Incharge of Regional Artificial Insemination Centre and Dairy Extension Officer. Category-2 xx xx Category-3 xx xx CLASS V Category-1 Veterinary Assistant Surgeon, Junior Research Statistican. 2. APPOINTMENT: (a) Appointment to the several classes and https://hcservices.ecourts.gov.in/hcservices/ categories of posts in the service shall be made as follows: Class Category Posts Method of recruitment. 1. 2. 3. 4. IV. 1 Assistant Director By promotion from among the of Animal Husbandry, holders of the posts in Specialist (Live Category-1 of Class V (or) Stock) including appointment from among the Assistant Director holders of the post of of Animal Husbandry, Forest Veterinary Officers Specialists (Disease in Category-3 of Class IV; Investigation) or by direct recruitment. Superintendent of Farms, Clinician, Veterinary Officers, Officer incharge of Regional Artificial Insemination Centre and Dairy Extension Officer. 2. xx xx 3. xx xx 4. xx xx i. Veterinary Assistant By direct recruitment. Surgeon and Junior Research Statistician. 2. xx xx 6. OTHER : QUALIFICATION: No person shall be eligible for appointment to the post and by the method specified in columns (1) and (2) respectively of the Table below, unless he possesses the qualifications specified in the corresponding entries in columns (3) thereof: https://hcservices.ecourts.gov.in/hcservices/ CLASS IV ----------------------------------------------------------- Post Method of recruitment Qualification 1. 2. 3. ----------------------------------------------------------- Category-1 By promotion from a. BVSc., degree. (Assistant category-1 in Class V. Director of b. Experience in the Animal Husban- (OR) Tamil Nadu Animal dry Specialist By transfer from Husbandry Depart- (Livestock) among officers in ment for a period including category 3 of Class IV. of not less than five years and Assistant Director (OR) of Animal By direct recruitment. c. Must have passed Husbandry Specialist the Account Test (Disease Investi- for Executive gation) Officers. Superintendent (OR) of Farms, Clinician, By direct recruit- B.V.Sc., degree. Veterinary Officer ment. Officer in charge of Regional Artifi- cial Insemination Centre and Dairy Extension Officer, Category-1 Direct recruitment B.V.Sc., degree. Veterinary Assistant Surgeon Junior Research Statistician. ----------------------------------------------------------- 17. It is clear from the above details that in the State of Tamil Nadu the post of Veterinary Assistant Surgeons is placed one level below that of Assistant Directors in the scale of Rs.6500- 11,100. It is further seen that the basic pay of Rs.8000-13,500 has been granted to Assistant Directors in the Veterinary Service. As rightly pointed out, if the pay scale of Veterinary Assistant Surgeon has to be stepped up to the level of Rs.8000/- as demanded by the members of the petitioner Association, the basic pay of Assistant Director of Veterinary Service has to be still stepped up and it will result in chain action as well as increase in the https://hcservices.ecourts.gov.in/hcservices/ financial burden on the Government. As rightly pointed out by the Tribunal, even if there is any disparity among Assistant Directors as well as Veterinary Assistant Surgeons and other similarly placed persons in the other departments, it is for them to pursue the Government and ultimately it is for the Government to take a decision if the same is acceptable. The comparison also shows that Civil Assistant Surgeons and Veterinary Assistant Surgeons are not doing equal work. Undoubtedly, the work load and responsibilities of the Civil Assistant Surgeons and Members of the Indian Medicine are more onerous than that of the Veterinary Assistant Surgeons. 18. Now we shall consider various decisions relied on by both sides in respect of their respective stand. Mr. N.G.R. Prasad very much relied on the following decisions: i) Supreme Court judgement in Appeal (Civil) No. 6562 of 2002 (STATE OF HARYANA v. CHARANJIT SINGH) Dated 05-10-2005. ii) 2004 (4) SCC 646 (MP RURAL AGRICULTURE EXTENSION OFFICERS ASSN. V. STATE OF M.P) iii) (2002) 6 SCC 72 (STATE OF HARYANA v. HARYANA CIVIL SECRETARIAT PERSONAL STAFF ASSOCIATION) (iv) (2003) 6 SCC 123 (STATE OF HARYANA v. TILAK RAJ) (v) (2002) 4 SCC 556 (STATE BANK OF INDIA v. M.R. GANESH BABU) (vi) (2004) 6 SCC 218 (STATE OF MIZORAM v. MIZORAM ENGINEERING SERVICE ASSOCIATION) (vii) Patna High Court’s Judgement in C.W.J.C. No. 7116 of 1999 Dt:8-7-2005 (BIHAR VETERINARY ASSOSN., v. STATE OF BIHAR). Though emphasis is made in all the above decisions for equal pay for equal work, if the duties and responsibilities are one and the same, 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. It is also not in dispute that 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 are to be considered