Madras High Court
The State Represented By vs S.Rajaram on 5 March, 2021
W.A(MD)No.201 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.03.2021
CORAM:
THE HON'BLE CHIEF JUSTICE,
THE HON'BLE MR JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR JUSTICE M.DHANDAPANI
W.A(MD)No.201 of 2021
and
C.M.P(MD)No.622 of 2021
1.The State represented by
its Secretary,
School Education Department,
Fort St.George, Chennai -6 00 009.
2.The Director School Education,
College Road,
Chennai – 600 006. ... Appellants /Respondents
Vs.
1.S.Rajaram
2.M.Goplakrishnan
3.M.Rajkumar ... Respondents /Writ Petitioners
PRAYER: The Writ Appeal is filed under Clause 15 of Letters Patent to set
aside the order dated 16.04.2018 in W.P(MD)No.15733 of 2014 on the file
of this Court and allow this writ appeal.
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For Appellants : Mrs.S.Srimathy,
Special Government Pleader
For Respondents : Mr.M.Ajmal Khan,
Senior Counsel,
for Mr.B.Prahalad Ravi
JUDGMENT
[Judgment of the Court was delivered by G.R.SWAMINATHAN, J]
This writ appeal is directed against the order dated 16.04.2018
allowing W.P(MD)No.15733 of 2014 filed by the respondents herein.
2.The respondents are working as vocational instructors in
government higher secondary schools. They were placed in pre-revised
scale of pay of Rs.1400 – 2600 and revised scale of pay of Rs. 5500 – 175 –
9000. According to them, this fixation was erroneous since vide
G.O.Ms.No.840 dated 31.07.1990, the time scale of pay for vocational
instructors having B.Sc.,(Agri) qualification was directed to be fixed as
Rs.2000 – 3500 (equivalent to Rs.6500 - 11100). They represented to the
government seeking pay scale parity. The request was rejected by the
Director of School Education, Chennai vide proceedings in
Na.Ka.No.24069/VI/V3/2014, dated 21.08.2014. Challenging the same,
they filed W.P(MD)No.17533 of 2014. They contended that the issue raised
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by them had already been answered in their favour in W.A(MD)No.1344 of
2013 dated 14.08.2014 (The State of Tamil Nadu represented by its
Secretary, School Education Department, Chennai and two others Vs
Vasimalai and another). The learned single Judge accepted the said
contention and allowed the writ petition.
3.Questioning the same, the State filed this writ appeal. Before the
Division Bench, the Special Government Pleader submitted that the
previous order on which reliance was placed by the learned single Judge
was clearly distinguishable on facts. Though the Division Bench was
inclined to sustain the said contention, it noted that another Division Bench
vide order dated 21.01.2019 in W.A(MD)No.1040 of 2019 had also
followed Vasimalai. The factual matrix in W.A.No.1040 of 2019 was similar
to the facts on hand. Hence the matter was referred to the Full Bench by
framing the following question:
“Is a Vocational Instructor recruited through Teachers
Recruitment Board for the post created in G.O.Ms.No.129 School
Education (HS3) Department dated 18.05.1999 and G.O.Ms.No.
63, School Educational Department dated 1303.2007 the scale of
pay, having been prescribed in the ad hoc Rules issued in the
G.O.Ms.No.6, School Educational (VE) Department dated
04.01.2000, entitled to get higher salary on par with those who
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were appointed initially as double part time Vocational
Instructors and brought under regular scale of pay subsequently
but prior to the framing of ad hoc Rules?.”
4.Learned Special Government Pleader appearing for the appellants
reiterated the contentions set out in the memorandum of grounds of appeal
and prayed for setting aside the order of the learned single Judge and for
allowing the writ appeal.
5.Per contra, learned Senior Counsel appearing for the respondents
submitted that there is absolutely no merit in this appeal. According to him,
the learned single Judge had correctly applied the principle of equal pay for
equal work. When some of the vocational instructors (Agriculture) are in the
pay scale of Rs.6500 – 11100, the respondents, who are discharging the very
same duties and functions, cannot be placed in a lesser scale of pay (Rs.
5500 - 9000). He drew our attention to the decisions of the Hon'ble Supreme
Court reported in (1982) 1 SCC 618 ( Randhir Singh Vs Union of India)
and (2017) 1 SCC 148 ( State of Punjab and others Vs Jagjit Singh and
others) to drive home his point.
6.We have carefully considered the rival contentions and gone
through the material on record. To appreciate the facts of the case, it is
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necessary to briefly consider the historical background.
7.The Education Department of the government of Tamil Nadu
introduced the higher secondary / plus-two system in 1978 – 79. It also
permitted starting of vocational courses in higher secondary schools vide
G.O.Ms.No.1719, dated 14.09.1978. Vocational courses were started in 709
out of 874 higher secondary schools. The total number of courses was 1153.
The major vocational groups under which the 1153 courses fell were as
follows:
Total 1153
8.In fact, vocational courses were in existence even earlier.
For 491 out of 1153 courses, staff were also available. For the remaining
vocational courses, it was proposed to draft vocational instructors on
part-time basis. Depending on the situational requirements, persons were
also appointed as double part-time vocational instructors. BSc., (Agri) was
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the prescribed qualification for vocational instructor (Agri). The part-time
posts carried a consolidated remuneration. Later, representations were
received for regularisation of their services and for fixing reasonable time
scale of pay. There were 1837 double part-time vocational instructors
working in the higher secondary schools. The government decided to
regularise their services over a period of two years from 1990 – 1991
onwards. To this effect, G.O.Ms.No.712 dated 28.05.1990 was issued
creating 800 posts of vocational instructors in the scale of pay of
Rs.1400 – 2600. The government also appointed a One-Man Committee to
review the entire concept of vocationalisation in higher secondary schools
and to undertake a data-based study regarding their regularisation. It also
amended the schedule to the Tamil Nadu Revised Scale of Pay Rules, 1989
placing agricultural instructors having BSc.,(Agri) degree in the time scale
of pay of Rs.2000 – 3500 vide G.O.Ms.No.840, Finance Department dated
31.07.1990. During the relevant time, vocational instructors fell under two
broad classes. The first was vocational instructors working in the
government schools even prior to the introduction of the plus-two system
(higher secondary course). The second was the part-time vocational
instructors, who were categorised into four sub-classes namely,
(a) fully qualified double part-time teachers (b) unqualified double part-time
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teachers (c) qualified single part-time teachers and (d) unqualified single
part-time teachers. G.O.Ms.No.967, dated 16.10.1992 was issued to deal
with various categories of part-time vocational instructors. 587 fully
qualified double part-time teachers were brought into regular scale of pay.
Unqualified 450 double part-time teachers were to be trained and absorbed
in the regular scale of pay. All qualified single part-time teachers were to be
absorbed in the existing sanctioned secondary grade posts. Other
unqualified single part-time teachers were to be given training and absorbed
as secondary grade teachers in future. Sanction was accorded for the
creation of 587 posts of vocational instructors in the scale of pay of
Rs.1400-2600 so as to absorb the fully qualified double part-time teachers
on regular basis with effect from 16.10.1992. It also ordered abolition of
587 double part-time teacher posts.
9.The single part-time teachers who felt aggrieved by the aforesaid
government orders challenged the same before the Tamil Nadu
Administrative Tribunal. The Tribunal ordered that the government should
re-examine and formulate a policy by giving due regard to seniority.
Pursuant to the aforesaid direction, the issue was re-examined and
G.O.Ms.No.834, dated 23.09.1994 was issued. The government ordered the
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creation of 1387 posts of vocational instructors on regular time scale of pay
of Rs.1400 – 2600. These posts were to be filled up by the fully qualified
part-time teachers according to their seniority irrespective of whether they
were working as double or single part-time instructors. Several other
directions were issued to deal with the four categories of vocational
instructors mentioned above.
10.It has already been noted that there were vocational instructors
working in the government schools even prior to the introduction of the
plus-two system (higher secondary course). Those possessing BSc.,(Agri)
qualification, were placed in the pay scale of Rs.2000 – 3500 on par with
post-graduate teachers following the implementation of
G.O.Ms.No.840, dated 31.07.1990. They were termed as bifurcated
instructors. But the part-time vocational instructors who were regularised
with effect from 16.10.1992 were in the pay scale of Rs.1400 – 2000. Some
of such regularised part-time vocational instructors filed W.P.No.19224 of
1998 while one G.Narayanasamy filed O.A.No.1755 of 1998 before the
Administrative Tribunal seeking revision and enhancement of pay scale at
par with the bifurcated instructors. Following the abolition of the Tribunal,
O.A.No.1755 of 1998 was transferred to the High Court and re-numbered as
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W.P.No.32121 of 2006 (T). W.P.No.19224 of 1998 filed by T.Elamathiyan
and seven others was dismissed on 23.03.2009 on the ground that the
demand has to be considered only by the government and it was not for the
Court to interfere. W.P.No.32121 of 2006 was listed before another Judge.
The order dated 23.03.2009 made in W.P.No.19224 of 2009 was not brought
to the notice of the learned Judge. W.P.No.32121 of 2006 was allowed on
the basis that there cannot be two sets of vocational instructors drawing
different scales of pay while doing the same work. The act of the department
in fixing lower scale of pay for the regularised double part-time vocational
instructors was held to be discriminatory and violative of Article 14 r/w
Article 39 (d) of the Constitution of India.
11.Questioning the said order, the government filed W.A.No.1814 of
2011. In the meanwhile, one Selvakumar and four others filed W.P.No.
17801 of 2000 seeking similar relief. The learned Judge before whom the
case was listed noticed the conflict between the two orders in W.P.No.19224
of 1998 and W.P.No.32121 of 2006. The matter was placed before the
Division Bench, which dismissed the writ petition by holding that the view
taken in G.Narayanasamy's case was not in accordance with law. Since such
a finding foreclosed G.Narayanasamy's case in the pending writ appeal, he
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filed Rev.Appln.No.2 of 2011. By order dated 11.02.2011 it was disposed of
by deleting the aforesaid adverse observation. The Division Bench also
recorded the submission of the Special Government Pleader that the factual
and legal matrices obtaining in the aforesaid two writ petitions were
different and that they had filed W.A.No.1814 of 2011 without knowing the
implications. W.A.No.1814 of 2011 consequently suffered a dismissal.
S.L.P(Civil)No.22874 of 2012 questioning the same was also dismissed on
01.07.2013. After G.Narayanasamy filed Cont.P.No.1576 of 2012, the
government implemented the judicial orders by issuing G.O(1D) No.327,
School Education Department, dated 18.11.2013.
12.One Vasimalai who was also regularised with effect from
16.10.1992 like G.Narayanasamy filed W.P(MD)No.5766 of 2008. His writ
petition was allowed on 05.03.2012. Questioning the same, the government
filed W.A(MD)No.1344 of 2013. The Division Bench took the view that the
issue involved was covered by G.Narayanasamy's case and dismissed the
writ appeal on 14.08.2014.
13.Now the question that arises for consideration is whether the
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learned single Judge was justified in applying those decisions in the case of
the respondents also?
14.We are of the view that the respondents cannot compare
themselves with the double part-time instructors who were regularised
under G.O.Ms.No.967, dated 16.07.1992. There is a line of control (LOC)
running across and demarcating the present case from the previous ones.
The government took a policy decision in the year 1999 to create 100
temporary posts of vocational instructors with basic pay of Rs.5500 – 175-
9000 to introduce the subject of agriculture in 100 schools. G.O.Ms.No.129
dated 18.05.1999 was issued to that effect. It was termed as a new project.
Budgetary allocation was to be made on that basis. Ad hoc rules for the said
post of vocational instructors in higher secondary schools was issued in
exercise of powers conferred by the proviso to Article 309 of the
Constitution of India vide G.O.Ms.No.6, dated 04.01.2000. The rules were
deemed to have come into force on the 23rd day of September, 1994. Rule 8
of the said rules reads that the vocational instructors shall be paid a monthly
pay calculated in the scale of pay specified in column (3) of sub rule 8.
Rule 9 stated that nothing contained in the Ad hoc rules shall adversely
affect any person holding the post on the date of issue of the rules.
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15.According to rule 2, the posts shall constitute a separate category
in separate class in the Tamil Nadu School Educational Subordinate Service.
Direct recruitment was to be one of the modes of appointments. The joint
director of school education (higher secondary) shall be the appointing
authority. The respondents herein were selected in the recruitment process
conducted by the Teachers Recruitment Board. S.Rajaram and M.Rajkumar
were appointed on 25.09.2001. M.Gopalakrishnan was appointed on
13.01.2009. The proceedings issued by the appointing authority refer to
G.O.Ms.No.129, dated 18.05.1999. It is also mentioned that the appointees
will be drawing pay in the scale of 5500-175-9000.
16.The legal position no longer admits of any doubt. Certain
anomalies may arise in specific cases. There cannot be perfect equality in
any matter on an absolute scientific basis and there may be certain inequities
here and there (Para 5 in H.P.Gupta and another Vs Union of India, (2002)
10 SCC 658). Grant of the benefit of the doctrine of “equal pay for equal
work” depends upon a large number of factors including equal work, equal
value, source and manner of appointment, equal identity of group and
wholesale or complete identity (Para 24 in State of Punjab Vs Surjit Singh
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and others, (2009) 9 SCC 514). If this test of complete or wholesale
identity is applied, the respondents have to necessarily fail. The respondents
were recruited under a particular G.O which created a separate class of
posts with a specified pay scale governed by statutory Ad hoc rules. Both
G.Narayansamy as well as Vasimalai were regularised before the coming
into force of the Ad hoc rules. They were not recruited under
G.O.Ms.No.129 dated 18.05.1999. They do not belong to the class to which
the respondents herein were appointed. It is true that the respondents are
discharging the same duties and responsibilities discharged by
G.Narayanasamy and Vasimalai. But that cannot be the sole criterion to
determine the issue. A mathematical analogy may clarify better.
G.Narayanasamy and Vasimalai constitute a 'set'. The respondents constitute
another 'set'. If we super-impose one on the other, and a complete and
wholesale identity obtains, then a case for parity is made out and not
otherwise. Mere overlapping is not sufficient. In the present case there is
only overlapping and no complete / wholesale identity.
17.A recent decision of the Hon'ble Supreme Court reported in
AIR 2019 SCC 2521 (State of Bihar and Others Vs Bihar Secondary
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Teachers' Struggle Committee, Munger and others) which reviews of the
earlier rulings including Randhir Singh and Jagjit Singh referred to by the
learned Senior Counsel appearing for the respondents is more on the point.
It holds that the doctrine of equal pay for equal work is not an abstract
doctrine and that it has no mechanical application in every case.
The applicability of the principle must be left to be evaluated and
determined by an expert body. The grant of time scale of pay is purely an
executive function and hence the Court should not interfere with the same.
Grant of pay parity which the Court may grant may result in a cascading
effect and reaction which can have adverse consequences. Before
entertaining and accepting claims, based on the principle of equal pay for
equal work, the Court must consider the factors like source and mode of
recruitment/appointment. In a given case, mode of selection may be
considered as one of the factors which may make a difference. It is quite
possible that due to certain reasons there can emerge two classes with one
being a dying or vanishing cadre. The service incidents of these two cadres
will be different. That by itself would not be discriminatory. [Paragraphs 68,
76 and 77]. Adopting the very same reasoning, we note the vocational
instructors employed in the higher secondary schools prior to the
introduction of G.O.Ms.No.129, dated 18.05.1999 can be said to constitute
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a vanishing cadre and therefore their service incidents can be different from
those appointed subsequently under the said GO.
18.We still have to deal with the order dated 21.01.2019 made in
W.A.No.1040 of 2019 (The Government of Tamil Nadu represented by its
Principal Secretary, School Educational Department Vs Kalarani &
others). It is true that the case of the respondents therein is similar to that of
the respondents herein. It also appears that the order dated 21.01.2019 in
W.A.No.1040 of 2019 had attained finality. Yet, we are of the view that the
present writ appeal cannot be governed by the order dated 21.01.2019 for
more than one reason. The Division Bench which dismissed W.A.No.1040
of 2019 was under the impression that the vocational instructors
(Agriculture) and vocational instructors in other streams though discharge
identical duties, were placed in different time scales. It is not so. A mere
look at G.O.Ms.No.6 dated 04.01.2000 is enough to dispel the same. The
vocational instructors whether for Home Science, Commerce and Business
and Agricultural, Engineering and Technology, Health or Photography and
Music have been placed in the very same time scale of pay of Rs.5500 – 175
– 9000. Secondly, the Division Bench took the view that the decisions
rendered in G.Narayansamy and Vasimalai should be followed. We have
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already held that vocational instructors appointed under G.O.Ms.No.129,
dated 18.05.1999 r/w G.O.Ms.No.6, dated 04.01.2000 constitute a separate
class distinct from the one to which G.Narayanasamy and Vasimalai
belonged.
19.It is well settled that Article 14 of the Constitution of India cannot
be invoked for perpetuating illegality. A wrong order passed in one case
cannot be made the basis for compelling a public authority to pass similar
order in any other case. Even if the State implements an erroneous order
passed by the Court, it cannot be precluded from challenging a similar order
passed in another case, simply because appeal was not preferred in the
earlier case (Paragraph No.17 in State of Madhya Pradesh Vs. Ramesh
Chandra Bajpai, reported in (2009) 13 SCC 635)
20.To reiterate, vocational instructors recruited through the Teachers
Recruitment Board for the posts created vide G.O.Ms.No.129, dated
18.05.1999 and G.O.Ms.No.63, dated 13.03.2007, who are governed by
G.O.Ms.No.6, dated 04.01.2000 are not entitled to claim parity of pay scale
with those appointed initially as double part-time vocational instructors and
who were subsequently regularised under G.O.Ms.No.967, dated
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16.10.1992.
21.The reference is answered accordingly. The order of the learned
single Judge is set aside. W.A(MD)No.201 of 2021 is allowed. No costs.
Consequently, C.M.P(MD)No.622 of 2021 is also dismissed.
[S.B., C.J.] [G.R.S.,J.] [M.D.I.J,.]
05.03.2021
Index : Yes/No
dsk
To
1.The Secretary,
School Education Department,
Fort St.George,
Chennai -6 00 009.
2.The Director School Education,
College Road,
Chennai – 600 006.
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THE HON'BLE THE CHIEF JUSTICE,
G.R.SWAMINATHAN.J
AND
M.DHANDAPANI.J
dsk
W.A(MD)No.201 of 2021
05.03.2021
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