IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.3.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.19224 of 1998 1.T.Elamathiyan 2.T.Ashok 3.A.Manoharan 4.S.Rajarajeswari 5.S.Pugalendhi 6.G.Niarudavanan 7.C.Sudhakar 8.R.Jeevabarathi .. Petitioners -vs- 1.The State of Tamil Nadu, rep. by its Secretary to Government, Department of School Education, Fort St.George, Chennai-9. 2.The Director of School Education, Chennai-6. 3.The District Educational Officer, Tanjore, Tanjore District. 4.The Correspondent/Secretary, Sri K.G.S.Hr.Sec.School, Aduthurai, Tanjore District-612 101. 5.The Correspondent/Secretary, St.Joseph's Girls' Hr.Sec.School, Kumbakonam Taluk, Thanjavur District. 6.The Correspondent/Secretary, T.A.Hr.Sec.School, Thiruvidaimarudur, Thanjavur District. https://hcservices.ecourts.gov.in/hcservices/ 7.The Correspondent/Secretary, Crescent Hr.Sec.School, Avaniapuram,Aduthurai (via) Thiruvidaimarudur Taluk, Thanjavur District. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents to fix the scale of pay of the petitioners on par with that of the bifurcated instructors/P.G. Teachers based on the principle of "Equal pay for Equal work" atleast from the respective date of fixing the regular scale of pay pursuant to G.O.No.712, dated 28.5.1990, G.O.No.967, dated 16.10.1992 and G.O.No.834, dated 23.9.1994 for the petitioners. For petitioners : Mr.Saravanakumar for M/s.La Law For respondents : Mr.A.Arumugam, Spl.G.P. for R1 to R3 Mr.K.Chandrasekaran for R6 ***** O R D E R The petitioners have filed the writ petition seeking for a direction to the respondents to fix the scale of pay of the petitioners on par with that of bifurcated Instructors/P.G.Teachers based on the principle of ''Equal Pay for Equal Work" from the date of fixing their regular scale of pay pursuant to G.O.Ms.No.712 dated 28.5.1990 and G.O.Ms.No.967 dated 16.10.1992 and G.O.Ms.No.834, dated 23.9.1994. 2. The writ petition was admitted on 28.1.2003. Pending the writ petition, this Court declined to grant any interim relief. 3. The case of the petitioners was that the teachers working in High Schools with diversified courses with subjects like Engineering, Commerce, Agriculture and Home Science were allowed to be utilised as vocational Instructors in Higher Secondary Courses. Therefore, G.O.Ms.No.1719, Education, dated 14.9.1978 was passed permitting the utilisation of erstwhile bifurcated staff to teach in the Higher Secondary Classes. The Government also sanctioned part- time teachers to teach vocational education in the Higher Secondary Classes. During the year 1978 when the Higher Secondary System was introduced, P.G.Teachers who were appointed under general stream were regularised. But, however, those who were teaching vocational https://hcservices.ecourts.gov.in/hcservices/ subjects and were appointed as Part-time Instructors, were not regularised till 1990. After several representations, G.O.Ms.No.712, School Education, dated 28.5.1990 was issued wherein 800 Part-time Vocational Instructors were given the regular scale of pay. Again by G.O.Ms.No.967, School Education, 537 part-time vocational Instructors were converted into full-time vocational Instructors. Thereafter, by G.O.Ms.No.834, School Education, dated 23.9.1994, 603 part-time instructors were made as full-time instructors. All of them were put in the minimum basic pay of Rs.1,400/- p.m. 4. It was at this juncture, teachers who were affected by G.O.Ms.No.834, dated 23.9.1994 challenged the said G.O. The petitioners who were absorbed as vocational Instructors were also permitted to teach vocational subjects like Commerce, Accountancy, Agriculture and Engineering etc. But though higher scale of pay was fixed for the erstwhile bifurcated instructors, the petitioners are given a consolidated pay. Regular scales of pay were fixed only by G.O.Ms.No.712, dated 28.5.1990 and G.O.Ms.No.967, dated 16.10.1992 and G.O.Ms.No.834, dated 23.9.1994. Even when the scale of pay was fixed, it was far lower than the scale of pay paid to the others who were working as P.G.Teachers. While the basic pay of those teachers were fixed as Rs.1400/-, the basic pay of P.G.Teachers were fixed as Rs.1820/-. Therefore, the petitioners have filed the present writ petition seeking for pay on par with the bifurcated teachers/P.G.Teachers on the basis of 'equal pay for equal work'. The petitioners also have elaborately set out that the nature of teaching was almost same and there should not be any discrimination in the matter of fixation of pay for the petitioners. 5. The petitioners placed reliance upon the judgment of the Central Administrative Tribunal relating to Puducherry Instructors in O.A.(P) No.38 of 1994, dated 19.3.1999. In that O.A., the Puducherry Government was given direction to consider the case of the petitioners for higher scale on par with the Post Graduate Teacher. The appeal by the Puducherry Government was also rejected by a Division Bench of this Court by its order dated 17.12.2003 passed in W.P.No.19904 of 1999. Pursuant to the order passed by this Court, the Government of Puducherry issued G.O.Ms.No.75, Chief Secretary (Education) dated 10.7.2006 and implemented higher scale for those persons. 6. However, it must be stated that the concept of equal pay for equal work cannot be mechanically applied by the courts. It requires relevant consideration by the appropriate Government and it also involves a scientific study with reference to the criteria for payment. In this context, it is necessary to refer to the decision of the Supreme Court in S.C. Chandra and others -vs- State of Jharkhand and others reported in [2007 (8) SCC 279] wherein M. Katju, J., in his concurring judgment, held that grant of pay scales https://hcservices.ecourts.gov.in/hcservices/ is an executive or legislative function and not a judicial function. The passages found in paragraphs 24 to 28 and 33 to 35 may be usefully reproduced below:- Para 24. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s e.g. Dhirendra Chamoli v. State of U.P.2, Surinder Singh v. Engineer-in-Chief, CPWD3, Randhir Singh v. Union of India4, etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli case2 this Court granted to the casual, daily-rated employees the same pay scale as regular employees. Para 25. It appears that subsequently it was realised that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. government employees of one State were claiming parity with government employees of another State. Para 26. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years. Para 27. Thus, in State of Haryana v. Tilak Raj it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily-rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different. Para 28. In State of Haryana v. Charanjit Singh1 discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity https://hcservices.ecourts.gov.in/hcservices/ between the two groups. Moreover, even 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. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions. Para 33. ''It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen. Para 34. There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book The Spirit of Laws still broadly holds the field in India today. Thus, in Asif Hameed v. State of J&K a three- Judge Bench of this Court observed (vide paras 17 to 19): (SCC pp. 373-74) “17. Before adverting to the controversy directly involved in these appeals we may have a fresh look at the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people’s will, they have all the powers including that of https://hcservices.ecourts.gov.in/hcservices/ finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint. 18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles11 observed as under: (US pp.119-20) ‘All power is, in Madison’s phrase, “of an encroaching nature”. … Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. … Rigorous observance of the difference between limits of power and wise exercise of power—between questions of authority and questions of prudence—requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit in judgment on the wisdom of what Congress and the https://hcservices.ecourts.gov.in/hcservices/ Executive Branch do.’ 19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.” (emphasis supplied) Para 35. ''In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay)." 7. The said decision also came to be followed by the Supreme Court in the subsequent judgment in State of Punjab v. Surinder Singh and another reported in [2007 (12) Scale 602]. 8. In the light of the above, there is no case made out to entertain the writ petition. It is for the petitioners to move the State Government for such an equalisation of pay. The writ petition https://hcservices.ecourts.gov.in/hcservices/ will stand dismissed. No costs. The dismissal of the writ petition will not prevent the petitioners from approaching the Government with an appropriate request and needless to state that the representation if any made will be duly considered by the first respondent. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js To 1.The Secretary to Government, Department of School Education, Fort St.George, Chennai-9. 2.The Director of School Education, Chennai-6. 3. The District Educational Officer, Tanjore, Tanjore District. 4. The Correspondent/Secretary, Sri K.G.S.Hr.Sec.School, Aduthurai, Tanjore District-612 101. 5. The Correspondent/Secretary, St.Joseph's Girls' Hr.Sec.School, Kumbakonam Taluk, Thanjavur District. 6. The Correspondent/Secretary, T.A.Hr.Sec.School, Thiruvidaimarudur, Thanjavur District. 7.The Correspondent/Secretary, Crescent Hr.Sec.School, Avaniapuram,Aduthurai (via) Thiruvidaimarudur Taluk, Thanjavur District. SSR(CO) km/26.3. W.P.No.19224 of 1998 https://hcservices.ecourts.gov.in/hcservices/