IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 31558 of 2008(F) -------------------------- PETITIONER(S): ---------------------- KERALA P.W.D MECHANICAL STAFF UNION, REG.NO.200/78, THIRUVANANTHAPURAM. REPRESENTED BY ITS PRESIDENT V.K.JAIN. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): ------------------------ 1. THE ADDITIONAL SECRETARY, PAY REVISION IMPLEMENTATION WING, FINANCE DEPARTMENT, LEGISLATIVE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS (A) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. SPL.GOVERNMENT PLEADER SRI.N.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 31558 OF 2008 (F) ===================== Dated this the 5th day of November, 2009 J U D G M E N T This writ petition is filed by the Kerala PWD Mechanical Staff Union praying that the Roller Driver Grade I and Roller Driver Grade II in the Public Works Department should be given parity in pay with the Master Drillers and Drillers of the Ground Water Department. 2. The relevant posts in the PWD are Roller Cleaner, Roller Driver Grade II and Roller Driver Grade I. According to the petitioner, the corresponding posts in the Ground Water Department are Drilling Assistant, Driller and Master Driller. It is stated that Roller Cleaner and Drilling Assistant are fixed in the scale of pay of Rs.4990-7990. Despite this parity in the scale of pay, in so far as Roller Driver Grade I and Driller are concerned, they are given the scales of Rs.5510-8590 and Rs.7990-12930 respectively. As far as the post of Roller Driver Grade I and Master Driller are concerned, it is pointed out that the scales of pay are Rs.6680-10790 and Rs.9590-16650. 3. From the above, it is pointed out that despite the WPC 31558/08 :2 : equation at the basic level, when it comes to the higher posts of Roller Driver Grade II and Roller Driver Grade I, they are discriminated by giving them scale of pay much lesser than what their counterparts in the Ground Water Department, viz., Driller and Master Driller, are getting. It is stated that the qualification prescribed for the post and the duties discharged being similar, there is no rationale in discriminating Roller Driver Grade II and Roller Driver Grade I in the matter of pay. 4. A counter affidavit has been filed by the respondents. According to the respondents, the scale of pay varies from Department to Department and that the scale of pay of the aforesaid posts were always different. It is stated that the experts of the pay revision committee have considered the claim of the petitioner for equation of scale of pay and that the claim has not been accepted by such experts. In so far as the claim of scale of pay at the basic post of Roller Driver and Drilling Assistant is concerned, it is stated that, that again is based on the recommendation of the Pay Commission. It is also contended that the nature of duties and responsibilities attached to these posts are also different. 5. From the above pleadings, it can therefore be seen WPC 31558/08 :3 : that what the petitioner is claiming is parity in payment between one set of employees of the Public Works Department with another set of employees of the Ground Water Department. The right to claim equality of pay has been accepted by this Court as also the Apex Court in several judgments, recognizing such right to be a part of Article 14 and Article 39(d) of the Constitution of India. However, such equation of pay is permissible only if it is proved that the two sets of employees are equal in all respects and that one set among them is shown to be discriminated as against the other. 6. It has been held that fixation of pay scale is a delicate mechanism which requires various considerations such as financial capacity, responsibility, educational qualification, mode of appointment and that it has a cascading effect. Therefore, as pointed out by the Apex Court in S.C.Chandra v. State of Jharkhand {(2007) 8 SCC 279}, of late, realising that the application of the principle of equal pay for equal work has been creating havoc for administrators, the courts have been slow in applying the principle and in fact had considerably watered down the theory. In the aforesaid judgment, the Apex Court also has held that the principle of equal pay can apply only if there is WPC 31558/08 :4 : complete and wholesale identity between two groups of employees and even if the employees in the two groups are doing identical work, they cannot be granted equal pay unless there is complete and wholesale identity among the two sets of employees. It was also pointed out that even if a daily rated employee is doing the same work as a regular employee, yet he cannot be granted the same scale of pay and that two groups of employees may be doing the same work, yet if educational qualifications are different, different scales of pay can be prescribed. Therefore, unless there is complete and wholesale identity between two groups of employees, the principle cannot be applied. The Apex Court has subsequently followed the above judgment in Union of India and Others v. Hiranmoy Sen and others (JT 2007(12) SC 503) and State of Bihar v. Bihar Veterinary Association {(2008) 11 SCC 60}, where it has been held thus. 11. Recently in S.C.Chandra v. State of Jharkhand this Court (to which one of us was a party) examined the question of parity in pay scale and fixation of pay scales. Referring to an earlier decision of this Court in State of Haryana v. Tilak Raj this Court held that in order to get similar pay there should be complete and wholesale identity between two groups. This Court after examining all these cases on the subject has observed that granting of pay scale is a purely executive function and hence the court should not interfere with the same. The proper WPC 31558/08 :5 : forum is an expert body and the expert body in the present case has recommended the pay scale of Rs.6500-10,500 after taking into consideration various factors. The learned Single Judge as well as the Division Bench of the High Court ought not to have interfered with that finding. 12. In S.C.Chandra this Court observed as follows: (SCC pp.282-83) “For finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. The courts must realise that the job is both a difficult and time-consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences.” (emphasis in original) Therefore, the Fitment Committee after taking into account the conditions obtaining in the State of Bihar and the duties which are being discharged by the veterinarians and other services vis-a-vis the services in the Central Government has worked out a balancing work and recommended the pay scale of Rs.6500-10,500 after looking into various evidence which have been produced before the Fitment Committee. Therefore, it was not proper to have disturbed this finding nor was it correct on the part of the learned Single Judge as well as the Division Bench of the High Court to have interfered with the same. 13. If the courts start disturbing the recommendations of the pay scale in a particular class of service then it is likely to have cascading effect on all related services which may result into multifarious litigation. The Fitment Committee has undertaken the exercise and recommended the wholesale revision of pay scale in the State of Bihar and if one class of service is to be picked WPC 31558/08 :6 : up and granted higher pay scale as is available in the Central Government then the whole balance will be disturbed and other services are likely to be affected and it will result in complex situation in the State and may lead to ruination of the finances of the State. Therefore, interference by the learned Single Judge as well as the Division Bench of the High Court with the recommendation of the Fitment Committee was not warranted. 7. In this case, evidently, the petitioners are employees of the PWD department and they are claiming parity with employees of the Ground Water Department. While the petitioners represent Roller Drivers, they claim parity with Drillers and Master Drillers. It may be true that the qualifications are similar, but the nature of duties are different. By any stretch of imagination, it cannot be held that there is fusion between these two set of employees to claim equality among them, in which event only discrimination can be pleaded to seek the benefit of the theory of equal pay for equal work. 8. That apart, it is also seen that pursuant to the orders of this court in WP(C) No.2605/05, the petitioners had moved the Pay Revision Committee, and before the Committee made its recommendations, they had also considered the request of the petitioners for parity in pay and had rejected the request. Thus, before making the recommendation, the experts have also turned WPC 31558/08 :7 : down the prayer made by the petitioners. In such circumstances, this Court inexperienced and incapable of resolving such technical and complicated issues should be slow to upset such recommendations relying entirely on the affidavits filed in a writ petition. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp