IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21-10-2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.29908 of 2006 1.K.Anser Baig 2.V.Sukumar 3.N.Rajendran 4.R.Munusamy 5.V.Suresh 6.P.D.Venkatesan 7.C.Radhakrishnan 8.K.V.Bose 9.T.Natarajan 10.A.Veeramani 11.A.K.Bharathidasan 12.D.Doylas Anthony ... Petitioners Versus 1.The Government of Tamilnadu represented by the Secretary to the Government, Finance (Pay Cell) Department, Fort St.George, Madras-600 009. 2.The Chief Engineer (Agricultural Engineering), Nandanam, Madras-600 035. ... Respondents This petition came to be numbered by transfer of O.A.No.6676 of 1996 on the file of the Tamil Nadu State Administrative Tribunal,Chennai praying for the issuance of a Writ of Mandamus to direct the respondents to allow the scale of pay of Rs.950-1500 to the petitioner's category of Tractor Cleaners and grant them all consequential benefits. For Petitioner :Mr.P.Mohanraj for Mr.P.Rajendran For Respondents:Mr.V.Viswanathan Additional Government Pleader ORDER The petitioners have sought for a direction to the respondents to fix the scale of pay of Rs.950-1500 to the petitioner's category of Tractor Cleaners and grant them all consequential benefits. 2. Facts of the case are as follows: The petitioners are Tractor Cleaners in the Office of the Assistant Executive Engineer, (Agricultural Engineering-I), Nandanam, Madras-600 035. Prior to 8.1.1990, the post of Hammerman, Tractor Cleaner and Helper to Carpenter (now re-designated and merged with Carpenter-II) were in inferior service. There were many posts of (1)Helpers to Carpenter,(2)23 posts of Hammerman and 292 posts of Tractor Cleaners in Agricultural Engineering Department. The above said three categories belonged to full time skilled workers and they were working in fields and workshops throughout the day. Tractor cleaners possess driving licence and they help the Tractor drivers. Therefore, the Chief Engineer, (Agricultural Engineering) Madras-35, has sent proposals to the Government for bringing the above mentioned three categories of employees, namely Hammerman, Tractor Cleaner and Helper to Carpenter into superior service. The Government havae issued orders in G.O.Ms.No.22, Agriculture (AE-III) Department dated 8.1.1990, directing the said three categories of employees to be brought into superior service. 3. The petitioners have submitted that the category of Hammerman, and Hammerman Grade-II were allowed scale of pay of Rs.950-1500 and Rs.1100-1660 respectively, as per the orders of the Government in G.O.Ms.No.521, Finance (Pay Cell) Department dated 1.8.1992. Similarly, the category of Helper to Carpenter-II was also allowed scale of pay of Rs.950-1500. Both these categories were earlier in the scale of pay of Rs.825-1200. On account of bringing them into superior service, they were placed in higher scales of pay. It is the grievance of the petitioner that Tractor Cleaners,continued in the same scale of pay of Rs.750-945, even though the said category was brought into superior service, as per the Government Order stated supra. In this regard, Tamilnadu Arasu Aluvalar Kazhagam (C & D Group), a recognised Association, has submitted a representation to the Chief Engineer(Agricultural Engineering), Madras-35 on 19.12.1995, requesting him to revise the scale of pay for the category of Tractor Cleaner, as was done in the case of others, namely, Hammerman, Helper to Carpenter, but the representation did not evoke any response and hence the petitioner has preferred the Original Application before the Tamil Nadu Administrative Tribunal, Chennai praying for writ of Mandamus, which has been subsequently transferred to this court and renumbered as the present writ petition. 4. The grounds, on which the petitioner has sought for the relief are as follows: The categories of Hammerman, Helper to Carpenter (now re- designated and merged with the category of Carpenter Grade-II) and Tractor cleaners were in inferior service, prior to the issue of orders in G.O.Ms.No.22, Agricultural (E.III) Department dated 8.1.1990. Before the issuance of said government order, the categories of Hammerman, Helper to Carpenter were in the scale of pay of Rs.825-1200 and the category of Tractor Cleaner was in the scale of pay of Rs.750-945. The said two categories, namely, Hammerman and Helper to Carpenter (now re-designated and merged with Carpenter Grade-II) have been allowed scale of pay of Rs.950-1500 for Grade-I post, and Rs.1100-1660 for Grade-II post. When the scale of pay of the other two categories brought into superior service has been revised. Tractor Cleaners, who are similarly placed, are entitled to re-fixation of scale of pay and failure to do so, amounts to discrimination and violation of Article 14 of the Constitution of India. The qualifications prescribed for the post of Tractor Cleaner, Hammermen, Helper to Carpenter are the same and therefore there is no justification for denial of revision of scale of pay to the post of Tractor cleaners. 5. Learned counsel for the petitioners further submitted that when the Government have issued orders in G.O.Ms.No.511, Finance (Pay Cell) Department dated 1.8.1992, directing all Grade-II posts and Grade-I posts, should be allowed the scale of pay of Rs.950-1500 and Rs.1100-1660 respectively and the category of Tractor Cleaners should be allowed scale of pay of Rs.950-1500, on the strength of their inclusion in superior service, as was done in the case of others, namely Hammerman, Helper to Carpenter. 6. The respondents in their counter affidavit have submitted that trade posts were on different scales of pay till Forth Pay Commission recommendation. On the recommendation of One Man Committee (1986), the Government have classified trade posts into two groups, namely Group-I and Group-II, for admission to Industrial Training Institutes based on entry level qualification, for the reason that certain trades require "a pass in S.S.L.C.". while certain others, require "fail in S.S.L.C." or below S.S.L.C. i.e. mere experience only. The entry level qualification for admission to Industrial Training InstituteS for certain trades, which come under Group-II, is "S.S.L.C. failed", whileso, the entry level qualification for certain trades, which come under Group-I is a "Pass in S.S.L.C.". Accordingly trade posts which come under Group-I were provided scale of pay of Rs.610-1075 and trade posts coming under Group-II were provided scale of pay of Rs.555-970, as classified in G.O.Ms.No.762, Finance (PC) Department, dated 20.8.1986. The government further ordered that wherever the prescribed qualification for trade posts in the department of Industrial Training Institutes and the present scales of pay are lower than the pay scale indicated, the Heads of Department were requested to send necessary proposals for revision of scales of pay of such posts. In the meantime, the Fifth Tamilnadu Pay Commission has recommended the scale of pay of Rs.950-1500 for "S.S.L.C. passed" trades for the pre-revised scale of pay of Rs.610- 1075 and Rs.825-1200 for "S.S.L.C. failed" trades for the pre-revised scale of pay of Rs.555-970. 7. The respondents have further submitted that based on various representations of the Associations seeking uniform scales of pay to all the trade posts, The Tamil Nadu Administrative Tribunal, Chennai, in O.A.Nos.99 of 1989 and 598 of 1989, directed the Government to prescribe uniform pay scales to all trade posts in Government departments for possessing Industrial Training Institute qualification ignoring the academic qualifications i.e. S.S.L.C. passed or S.S.L.C. failed, prescribed for the trade posts. Based on the above judgement, the matter was examined by the Official Committee (which was set up to go into the anomalies arising out of Fifth Tamil Nadu Pay Commission recommendations). After examination of issue, the Official Committee has recommended uniform pay scale to all the trade posts for which Industrial Training Institute qualification is required. Accordingly the Government have issued orders in G.O.Ms.No.511, Finance (PC) Department dated 1.8.1992. As such, an uniform scale of pay of Rs.950-1500 was provided for all trade posts ( i.e. first level entry posts) and Rs.1100-1600 for promotional categories. 8. The respondents have further submitted that as per G.O.Ms.No.521, Finance (FC) Department dated 1.8.1992 the scale of pay for the post of Carpenter Grade-II and Hammerman Grade-II in Agricultural Engineering Department was revised from Rs.825-1200 to 950-1500 notionally, with effect from 1.6.1988 with monetary benefits from 1.4.1992. As regards the post of Tractor Cleaners, persons with good physique and general knowledge of work connected with cleaning, greasing and oiling any machinery were recruited by direct recruitment. The post of Tractor Cleaner was granted revised scales of pay of Rs.750-945 for the pre-revised scale of pay of Rs.450-720. Further, the scale of pay of a post is determined based on educational/technical qualification, duties and job factors prescribed for the post in ad-hoc rules and not with reference to the qualifications possessed by the individual employees, as in the case of the petitioners. However, in the revised special rules proposed for the post of Tractor Cleaner, the Chief Engineer (Agricultural Engineering) has proposed educational qualification from an Industrial Training Institute. Unless the educational qualification is revised, the scale of pay cannot be considered by the government. 9. The respondents have further submitted that as per G.O.Ms.No.22, Agriculture (AE) Department dated 8.1.1990, the following posts of Hammerman, Helper to Carpenter and Tractor Cleaner in Agricultural Engineering Department were brought under 'superior service' from 'inferior service' with immediate effect, i) Hammerman ... 26 ii)Tracter Cleaner ... 228 34 9 ------ 271 ------ iii)Helper to Carpenter ... 1 As per the Fifth Pay Commission, the scale of pay of the following posts are as follows: i)Hammerman, Grade-I .... Rs.950-1500 ii)Hammerman, Grade-II .... Rs.825-1200 iii)Tractor Cleaner .... Rs.750-945 iv)Helper to Carpenter .... Rs.775-1030 10. The respondents have further submitted that the scales of pay for the post of Hammerman Grade-I and Grade-II were revised from Rs.950-1500 to Rs.1100-1660 and from Rs.825-1200 to Rs.950-1500 respectively. The post of Helper to Carpenter was not merged with Carpenter Grade-II, but re-designated as Carpenter Grade-II and it was allowed scale of pay of Rs.950-1500. In the case of Tractor Cleaner the qualification as per rules are i) must possess good physique and (ii) must possess general knowledge of work connected with cleaning, greasing and Oiling of machinery. As requirement for the post is good physique only, it cannot be compared with other technical categories, where Industrial Training Institute qualification is the required qualification. 11. The respondents have further submitted that there is no justification to seek for higher scale of pay to Tractor Cleaners only on the ground that they were brought to superior service from inferior service. The respondents have further submitted that the difference in scale of pay is due to possession of technical qualification from Industrial Training Institutes. For the above said reasons, the respondents have prayed for dismissal of the writ petition. Heard the learned counsel for the parties and perused the materials available on record. 12. In G.O.M.S.No.22, Agricultural (AE) Department dated 8.1.1990, the Government have issued orders directing that Hammermen posts, Helper to Carpenter and Tractor Cleaners in the Agricultural Engineering Department be brought under Superior service from inferior service with immediate effect. On the proposal of the Chief Engineer (AE) stating that the scale of pay of Hammermen and Helper to Carpenter were higher than that of the Office Assistant, in Agricultural Engineering Department, the Government have considered the proposals of the Chief Engineer, in view of the fact that three categories namely, Hammermen, Helper to Carpenter and Tractor Cleaners belong to skilled work in field and workshop, through out day and therefore accepted to bring the categories, to superior service from inferior service. A bare reading of the above said order, does not indicate that the three categories, which were upgraded to superior service are automatically entitled to revision of scale of pay. However, since the trade posts were on different scales of pay till the Fourth Pay Commission, the Government have appointed a "One Man Committee" in 1986 and based on the recommendation, trade posts were classified into two groups namely Grade-I and Grade-II posts, based on the cadre level qualification for admission to Industrial Training Institutes for the reasons, that certain trades require " a pass in S.S.L.C", while certain others require "failed in S.S.L.C" or below i.e. mere experience only. The trade posts were on different scales of pay till the Fourth Pay Commission. 13. Accordingly, trade posts falling under Group-I were provided scale of pay of Rs.610-1075 and trade posts falling under Group-II were provided scale of pay of Rs.555-970, as classified in G.O.Ms.No.762 Finance (Pay Cell) Department dated 20.8.1986. Consequent upon the implementation of the scale of pay of Rs.950-1500 "for S.S.L.C. passed "trades for the pre-revised scale of pay of Rs.610—1075 and Rs.825-1200 "for S.S.L.C. failed" trades for the revised scale of pay of Rs.550-970, and following the judgements of the Tribunal in O.A.Nos.99 of 1989 and O.A.No.598 of 1989, directing the Government to prescribe uniform pay scales to the above trade posts in Government departments ignoring the academic qualification, the Government have issued orders in G.O.Ms.No.511 Finance (PC) Department, dated 1.8.1992 fixing a uniform scale of pay of Rs.950- 1500 to all the technical trade posts and it was revised notionally from 1.6.1988 with monetary benefits from 1.4.1992. As regards the post of Tractor Cleaners, no educational qualification was insisted. The qualifications for the post of Tractor Cleaner are 1) must possess with good physique, 2) must possess general knowledge of work connected q with cleaning, greasing and oiling any machinery. 14. Pleadings disclose that the pay scale of technical category possessing Industrial Training Institute qualifications have been revised on the basis of technical qualification and inasmuch as no technical qualification has been fixed for the post of Tractor Cleaner, there was no change in the scale of pay. 15. On the question of pay parity let me consider a few judgements of the Supreme Court where it has been held that evaluation of jobs for the purpose of scales must be left to expert body and unless there are any malafide in the evaluation it cannot be interfered with. 16. In Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India reported in 1988 3 SCC 91 the Supreme Court observed as follows:(SCC p.100, para 7) "7)Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the 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 make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgement by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgement is made bonafide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right." 17. In State of U.P. and others vs. Ministerial Karamchari Sangh reported in 1998 1 SCC 422, at paragraph 14 of the judgement, the Supreme Court held as follows: "14.Having regard to the above position brought out clearly in the impugned Office Memorandum and in the light of the long line of decisions of this Court to the effect that the principle of "equal pay for equal work" is not always easy to apply; that there may be any educational or technical qualification which may have a bearing on the scales which the holders bring to their job although the designation of the job may be the same. We do not think that the High Court was justified in issuing the mandamus." 18. While dealing with the issue of disparity in the pay of Sub Assistant Engineer in Education Department of West Bengal Vis a vis and the claim of operator-cum-mechanic in Government of West Bengal vs. Tarun K.Roy and others reported in 2004 (1) SCC 347 the Supreme Court held as follows: 14: Article 14 reads with Article 39 (d) of the Constitition of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations, the said doctrine would be automatically applied. The holders of higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently. In Paras 16 and 18 it is held that, the post of Operator-cum- Mechanic and Sub-Assistant Engineer are technical posts. The court in exercise of its powers of judicial review cannot hold that matriculates with a certificate from ITIs or simply graduates in Science would be entitled to hold the post of Sub-Assistant Engineers. In para 20 it is held that the question of violation of Article 14 of the Constitution of India on the part of the State would arise only if persons are similarly placed. Equality clause contained in Article 14 in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia. The doctrine of equal pay for equal work, therefore, is not attracted in the instant case. In paras (21) and (22) it is held that there is nothing on record to show that the duties and functions of two categories of employment are on a par, and, thus, parity in scales is not permissible. The very fact that from the very beginning two different pay scales were being maintained is itself suggests of the fact that the duties and functions are also different. In fact it is not disputed that the two posts of Sub Assistant Registrar is a higher post. In para (30) the Supreme Court further held that the respondents do not have the requisite technical qualification. Only because they are graduates, they cannot, claim equality with the holders of diploma in Engineering. If any relief is granted to the respondents on the said ground the same will be in contravention of the statutory rules. 19. In Deb Narayan Shyam, Versus State of West Bengal reported in (2005) 2 SCC 286, the Supreme Court considered the issue of disparity of pay between the post of Surveyors and Amins under the Land Records and Surveyors, Directorate, Government of West Bengal. It was contended that the work of Surveyors and Amins and the qualifications for recruitment are also almost identical. The department of Finance, Government of West Bengal issued a notification prescribing different scales of pay for Surveyors and Amins working in different departments under the Government of West Bengal. The Amins claimed same pay as that of Surveyors on the principle of equal pay for equal work. A Learned Single Judge allowed the writ petition and observed that there is no reason to differentiate between Amins and Surveyors. The learned Single Judge further held that once an Amin is appointed on the basis of the same qualification and discharged the same duty as that of Surveyor, same pay scale should be given to Amins as that of Surveyors. The Order of the learned Single Judge was not challenged by the Government. Based on the first order, many writ petitions were allowed and in some cases, the appeals preferred by the State were not pressed. The Special Leave Petition preferred by the State was also withdrawn. Later Amins in Cooch-Bihar District filed a writ petition in the High Court and sought for the same relief which was given to the Amins in a series of decisions given by the Calcutta High Court. 20. At paragraph 15, the Supreme Court Deb in Narayan Shyam's case, cited supra, held that; "the principles of equal pay for equal work depends upon the nature of duties performed by a particular category of posts and the qualifications for their recruitment. From the above discussion, it is clear that neither the duties nor the functions are identical nor the recruitment for the posts of Amins and Surveyors is identical as the qualification for recruitment for both the posts is different. A large number of decisions have been cited before us with regard to the principle of "equal pay for equal work" by both sides. We need not deal with the decision to overburden this judgement. Suffice it to say that the principle is settled that if two categories of posts perform the same duties and functions and carry the same qualification, then there should not be any distinction in pay scale between two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work." In the above reported case, reference has been made to the following decisions: 1.(1989) 1 SCC 121 State of U.P. v. J.P.Chourasia 2.1993 Supp (1) SCC 153 Secy., Finance Deptt. v. W.B. Registration Service Assn. 3.(1994) 2 SCC 521 Shyam Babu Verma v. Union of India; 4.(1994) 4 SCC 78 State of W.B. v. Hari Narayan Bhowal 5.(1998) 2 SCC 589 Union of India v. Ram Gopal Agarwal 6.(2000) 8 SCC 580 Union of India v. Pradip Kumar Dey 7.(2004) 1 SCC 347 Govt. of W.B. v. Tarun K.Ray 21. The same principle has been reiterated in State of West Bengal and another vs. T.K.Ghosh and others reported in 2005 10 SCC 339, the facts of the case and the judgements of the Division Bench of the State of West Bengal under appeal are as follows: " ... overseer and sub-overseer are concerned, they have been placed in one scale of pay and there was no grievance about it. However, the draftsmen placed in Categories (ii) and (iii), namely, those who had government school pass certificate or SF certificate and those who have only experience to their credit, claimed to be placed in the category of overseer and sub-overseer in the scale of Rs.380-910. They filed a writ petition in the High Court. Besides the claim for the same emoluments for similar work, they also claimed other allowances, for example, special allowancae, cycle allowance and arduous duty allowance, etc. The claim was preferred mainly on three grounds. First, that draftsmen constitute one category and discharge similar work, therefore, there should not be any distinction in the matter of emoluments to be paid to them. The principle ;of equal pay for equal work would according to be petitioner-respondents, be applicable in their cases. The next contention seeks to have been that in other departments such different categories have been merged into one category and one pay scale has been made admissible to them, therfore, the same should be done insofar as draftsmen in different departments are concerned. In support of their contentions they had referred to some decisions of this Court. The learned Single Judge held that the draftsmen have been discharging similar duties and that being the position they are entitled to the same emoluments. It is further held that the academic qualifications will have no bearing on the amount of the emoluments paid for a similar nature of work." 22. The Division Bench conferred the view of the learned Single Judge, which is extracted above. However on appeal, the Supreme Court following the decision in Tarun.K. Roy's case 2004(1) SCC 347 and the observations made in Shyam Sharma vs. Union of India reported in 1994 2 SCC 521, at paras 8,9, held that, " it has been clearly held that it is always open to the State Government to put its employees in the same service in different categories for the purpose of the scale of pay according to the qualifications possessed by them." At paragraph 11 of the judgement reported in State of W.B. vs. T.K.Ghosh 2005 (10) SCC 339 held that; "There is, therefore, no manner of doubt that the educational qualifications may be considered as a valid basis for categorising the employees though discharging similar duties, but possessing different qualifications having bearing on quality of work discharged. As we have already observed, in the case on hand, it could