MANU/TN/0427/2009

Equivalent Citation: (2009)5MLJ324

IN THE HIGH COURT OF MADRAS

W.P. No. 19224 of 1998
Decided On: 23.03.2009
Appellants: T. Elamathiyan and Ors.
Vs.
Respondent: The State of Tamil Nadu and Ors.
Hon'ble Judges/Coram:
K. Chandru, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Saravanakumar, Adv. for La Law
For Respondents/Defendant: A. Arumugam, Spl. G.P. for R. 1 to R. 3 and K.
Chandrasekaran, Adv. for R. 6
Case Note:
Service - Scale of Pay - Petitioners filed writ petition seeking direction to
respondents to fix scale of pay of petitioners on par with that of bifurcated
Instructors- P.G.Teachers based on principle of Equal Pay for Equal Work
from date of fixing their regular scale of pay - Held, fixing pay scales by
courts by applying principle of equal pay for equal work upsets high
constitutional principle of separation of powers between three organs of
State - Court has avoided applying principle of equal pay for equal work
unless there is complete and wholesale identity between two groups - No
case made out to entertain writ petition - It is for petitioners to move State
Government for such an equalisation of pay - Writ petition dismissed
ORDER
K. Chandru, J.
1 . 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

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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
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 Ors. v. State of Jharkhand and Ors. reported in
MANU/SC/3501/2007 : AIR2007SC3021 wherein M. Katju, J., in his concurring
judgment, held that grant of pay scales 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.; Surinder Singh v. Engineer-in-Chief, CPWD; Randhir Singh v. Union of
India etc. This was done by applying Articles 14 and 39(d) of the
Constitution. Thus, in Dhirendra Chamoli case this Court granted to the

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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 Singh 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 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)
1 7 . 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

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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 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.
1 8 . Frankfurter, J. of the U.S. Supreme Court dissenting in the
controversial expatriation case of Trop v. Dulles 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 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

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 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.
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 Anr. 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 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.

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