IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.08.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.26316 of 2006 (O.A.No.5580 of 1996) Tamil Nadu Government Typists and Stenos Association, affiliated to the T.N.G.O., Union, rep. by the State President, R.Purushothaman ... Petitioner v. 1. The Secretary to Government, P & AR Department, Fort St. George, Madras-9. 2. The Secretary to Government, Finance Department, Fort St. George, Madras-9. ... Respondents This petition came to be numbered by transfer of O.A.No.5580 of 1996 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorarified Mandamus, to call for the records in pursuant to the impugned letter No.52223/PC/96-1, dated 31.07.1996 passed by the first respondent, quash the same and to direct the respondents to grant pay protection to the members of the petitioner's association, who were appointed as Typist prior to the issuance of G.O.Ms.No.256, dated 01.08.1992 and consequently direct the respondents to grant scale of pay for the post of Typist as Rs.1200-2040 on par with the steno-typist retrospectively with effect from 01.06.1988 with full arrears. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mr.R.Neelakandan, Government Advocate O R D E R The petitioner is the Tamil Nadu Government Typists and Stenos Association, affiliated to the T.N.G.O., Union, rep. by its State President and it has challenged the impugned letter of the first respondent, dated 31.07.1996, rejecting the request for grant of pay protection to the members of the petitioner's association, who were appointed as Typist, prior to the issuance of G.O.Ms.No.256, dated 01.08.1992 and consequently direct the respondents to grant scale of pay for the post of Typist as Rs.1200-2040 on par with the steno-typist retrospectively with effect from 01.06.1988 with full arrears. 2. Facts of this case are as follows: The petitioner's association is an affiliated Association with the Tamil Nadu Government Officials Union, recognised by the Government of Tamil Nadu. The members of the association are the Typists and Stenos in the Tamil Nadu Ministerial service and Tamil Nadu Judicial Ministerial Services. Prior to the issuance of G.O.Ms.No.256, dated 01.08.1992, both the posts of Steno-Typists and Typists were under the same category with equal scale of pay and common seniority list was prepared by the Tamil Nadu Public Service Commission for further promotion. Even for the scheme of Selection Grade and Special Grade, their respective scales of pay were fixed equally. However, subsequently after issuance of the above said Government Order, the first respondent separated the post of Steno- typist and Typist and different scales of pay were fixed, viz., the post of Steno-Typist would carry the scale of pay of Rs.1200-2040/- and Typist would carry Rs.975-1660/-. Ever since from the date of appointment, there was uniformity in all aspects, including the scale of pay, but the first respondent, without any reason, fixed a lesser scale of pay to the post of Typists, by spliting up the categories. In any event, the pay protection ought to have been extended to the Typists, who were recruited prior to the issuance of Government Order. In this regard, the petitioner-association has submitted several representations to the Government to fix the scale of pay of Rs.1200-2040/- to the members of the Petitioner's association, who were recruited as Typists under the common categories by the TNPSC. When the respondents have failed to pass orders on their representation, dated 23.01.1995, the petitioner's association filed O.A.No.3250 of 1996 and the Tribunal, by order dated 03.07.1996, directed the respondents therein to dispose of the said representation within a period of six weeks. Pursuant to the directions, the second respondent issued the impugned letter, dated 31.07.1996, rejecting the claim of the petitioner's association on the ground that lesser scale of pay was fixed to the post of Typist on par with Central Government pattern. Aggrieved by the same, the petitioner has preferred Original Application before the Tamil Nadu Administrative Tribunal, which has been subsequently transferred to this Court and renumbered as present Writ Petition. 3. The petitioner has contended that G.O.Ms.No.256, dated 01.08.1992, is not applicable to Typists, who were recruited prior to the issuance of G.O., and the government order has not been issued with any retrospective effect. Therefore, fixing lesser scale of pay of Rs.975-1660/- to the post of Typists, who were recruited under the common categories of Typists and Steno-Typists prior to the issuance of the G.O., is arbitrary and in violation to Principles of Natural Justice. The petitioner has further contended that the respondents ought to have classified the candidates, who were recruited prior to 01.08.1992, under the common categories and fresh recruits appointed after the issuance of the above said G.O. It is further contented that while adopting the Central Government pattern, the respondents cannot discriminate the same group of people working in the State. 4. The respondents in their counter affidavit have submitted that the Government of Tamil Nadu have constituted Fifth Pay Commission to examine the demands of various associations. The Heads of the Departments recommended pay parity with that of Central Government. The Typists in Central Government were granted scale of pay of Rs.950-1500 and stenographers were granted Rs.1200-2040/-. Eventhough a higher scale of pay of Rs.1200-2040/- was fixed for Stenographers in Central Government, the Fifth Pay Commission has recommended a pay scale of Rs.950-1500/- for Steno-typists, as fixed for Typists and Junior Assistants for the reason that the posts of Typist and Steno-Typist were recruited from a single category. However, the Fifth Pay Commission has observed that if the category of Stenographer could be separated from Typist and graduate qualification could be prescribed for recruitment of stenographer in future, they may be allowed Central scale of pay of Rs.1200-2040 without Special pay. Therefore, the Government in G.O.Ms.No.666, Finance (PC) Department, dated 27.06.1989, have issued orders revising the scale of pay for all categories of employees based on the recommendations of the Fifth Pay Commission. The Typist and Steno-Typist were given a higher scale of pay of Rs.975-1660 as provided to Junior Assistant Rs.975-1660. 5. It is further submitted that after the Fifth Pay Commission, some of the service Associations have represented to the Government for revision of pay to the Steno-typists in the State on par with the Central Government and to redesignate the post as 'Stenographer' with the status of three grades, viz., Grade-I Grade-II and Grade-III for the reason that the minimum qualification prescribed under the Central Government is only Matriculation with typing speed of 40 words per minute and Shorthand speed of 80 words per minute. The said request was referred to the Official Committee and the said committee observed that the posts of typists and Steno-typists form a single category in the Rules and if the scale of pay for the post of steno-typists in the State has to be revised, these two categories have to be segregated first by amending the service rules (i.e.,) the Special Rules for the Tamil Nadu Ministerial Service and Tamil Nadu Judicial Ministerial Service. 6. In view of the recommendation of the Official Committee, it was decided to segregate the post of Steno-typist from that of Typist in the Tamil Nadu Ministerial Service and Tamil Nadu Judicial Service and to allow these posts as distinct categories under the existing Tamil Nadu Ministerial service as category 17 and 14(a). Therefore, the Government have issued orders in G.O.Ms.No.256, P & AR Department, dated 01.08.1992, revising the scale of pay of steno-typists and Personal Clerks in the Tamil Nadu Ministerial Service, Tamil Nadu Secretariat Service and Tamil Nadu Judicial Ministerial Service from Rs.975-1660 to Rs.1200-2040/- with effect from the date of orders. 7. The respondents have further contended that on the basis of the recommendations of the Fifth Pay Commission and the observations of the Official Committee, the grievances of the Ministerial Staff was examined. The scale of pay of Typist in Government of India is Rs.950-1500/- without Special Pay, whereas, the post of Typist carries a higher scale of pay of Rs.975-1660/- with Special Pay in the State. As regards, the scale of pay, viz., Rs.950-1500/- for typists and Rs.1200-2040/- for stenographers available in Central Scale of pay, it has not been practicable for the commission to recommend the same scale of pay to stenographers due to the fact that the service rules in the State provide for common recruitment (TNPSC) and common seniority system for Typists and Stenographers. Therefore, the Commission recommended the pay scale available for Junior Assistants to Typists and Steno-Typists, viz., Rs.950-1500/- with Special Pay for their technical qualification. However, while issuing the orders, the Government provided a higher scale of pay of Rs.950-1660/- to Typists/Steno-typists as given to Junior Assistants which is higher than the Central Scale of pay for the post of Typists. In addition to that, 5 per cent of pay as Personal pay as on 01.08.1992 was also sanctioned to those moved from the pre-revised scale of pay of Rs.610-1075/- to the revised scale of Rs.975-1660/-, which includes the category of Typists. Accordingly, a Typist under the State Government is drawing a minimum pay of Rs.1024/- plus a Special pay of Rs.30/- or Rs.40/- as the case may be, as against a minimum pay of Rs.950/- drawn by his counterpart in the Central Government. The Steno-typists by virtue of their technical qualification are paid the Central Scale of pay without Special Pay. Further, the Government have already amended the service rules making the post of Typist as a separate category. The Typists, therefore, have no claim over the Steno-typists, who have difference in technical qualification. 8. The respondents have further submitted that though the steno-typist, typist and Junior Assistant entered the service with basic academic qualification and common written examination, appointment to the post of Steno-typist, typist and Junior Assistant are made with reference to the technical qualification and also with reference to individual option while applying to these posts. The Government have accepted the parity of pay scales between the posts in the Central Government in Tamil Nadu and State Government. Therefore, the stenographer grade as available in Government of India was created and they were given the pay scale of Rs.1200-2040 without Special pay, which cannot be said to be arbitrary or violative of Principles of Natural Justice. The Typist in the Central Government were granted the scale of pay of Rs.950-1500/-, lesser than the scale of pay that of Typist in State Government, ie., Rs.975-1660/-, besides 5% of Basic Pay as Personal Pay as on 01.08.1992. For the above said reasons, the respondents have prayed for dismissal of the Writ Petition. Heard the learned counsel appearing for the parties and perused the materials available on record. 9. In a recent decision of the Hon'ble Supreme Court in Indian Drugs and Pharmaceuticals vs. Workmen reported in 2007(1) SCC 408, the Supreme Court held that orders for creation of posts, appointments on these posts, regularisation, fixing pay scales, continuance in service, promotions etc. are all legislative or executive powers and it is improper for judges to steps into the sphere except in a rare and exceptional case. 10. The Apex court has restated the above legal principle in yet another decision in S.C.Chandra v. State of Jharkhand reported in 2007(8) SCC 279, where the court held that, "the theory of separation of powers, first propounded by French philosopher Montesqhan in his book. The spirit of laws, still broadly holds the field in India. Fixing pay scales by court by applying the principles equal pay for equal work upsets the high constitutional principles of separation of powers the organs of state. Granting pay scale is purely an executive function and hence courts should not interfere with the same. 11. In the light of the principles laid down by the Supreme Court, the decision taken by the Government, after discussions with the committee and service associations, cannot be said to be arbitrary. Granting scale of pay to a particular post should be left to the discretion of the executive and High Court would not issue a Writ, in the nature of Mandamus to direct the executive to grant a particular scale of pay to a particular post. Taking into consideration the various factors, such as degree of skill, strain of work, responsibilities undertaken, nature of duties and such other factors as stated supra, this Court would not issue a Writ to award the scale of pay on par with the Stenographers working in the State. In view of the above, the relief prayed for in this Writ Petition cannot be granted. However, taking into consideration, the introduction of the VIth Pay Commission, it is open to the petitioner's association to ventilate their grievance by making a representation to the competent authorities, who shall consider the same in proper perspective and pass appropriate orders. 12. With the above directions, the Writ Petition is dismissed. No costs. 13.08.2008 Index: yes skm To 1. The Secretary to Government, P & AR Department, Fort St. George, Madras-9. 2. The Secretary to Government, Finance Department, Fort St. George, Madras-9. S. MANIKUMAR, J. Skm W.P.No.26316 of 2006 13.08.2008