Madras High Court
The Secretary To Government vs B.Amaravathi (Widow) on 1 November, 2021
W.A.No.2088 of 2021 batch case
THE HIGH COURT OF JUDICATURE AT MADRAS
DATE ON WHICH RESERVED : 01.11.2021
DATE ON WHICH PRONOUNCED : 20.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.Nos.2088 and 2043 of 2021, W.P.Nos.21901 and 22226 of
2019, 13308 & 13324 of 2020
and
CMP.Nos.13215 & 12985 of 2021 and WMP.Nos.21115 & 21509
of 2019 and 16447, 16449 & 16463 of 2020
W.A.No.2088 of 2021
1.The Secretary to Government
Home Department
Fort St.George
Chennai 600 009
2.The Director General of Police
Chennai 600 004
3.The Inspector General of Police
Central Zone
Trichy 620 001
4.The Superintendent of Police
District Police Office
Thiruvarur
5.The Superintendent of Police
District Police Office
Trichy Rural District ... Appellants/Respondents
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W.A.No.2088 of 2021 batch case
Vs.
1.B.Amaravathi (Widow)
D/o.Balakrishnan
2.M.Ealkkiya
D/o.Mathiyalagan
3.C.Anitha Roselin
D/o.Christhunathan
4.V.Raman
S/o.Vembaiyan
5.G.Vasugai
D/o.Christhunathan
6.R.Manikandan
S/o.S.Rasaiyan
7.T.Ramachandran
S/o.V.Thangaiyan
8.A.Rajkumar
S/o.Algarsamy
9.P.Palaniayani
S/o.Pitachi ....Respondents/Petitioners
Prayer: Writ Appeal filed under Clause 15 of Letters
Patent, to set aside the order, dated 16.10.2019 made in
W.P.No.29547 of 2019 and allow this writ appeal.
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W.A.No.2088 of 2021 batch case
For Appellants : Mr.R.Neelakandan
Additional Advocate General
Assisted by
Mr.K.Tippu Sultan
Government Advocate
in both the Writ Appeals
For Respondents : M/s.Bala & Daisy, G.
in W.A.No.2088 of 2021
For Respondents : M/s.Ravi Anantha Padmanaban
L.P.Maurya
For M/s.OM Sairam
in W.A.No.2034 of 2021
(In all the writ petitions)
For Petitioners : Mr.K.Ravi Anantha Padmanaban
in all the Writ petitions
For Respondents : Mr.R.Neelakandan
Additional Advocate General
Assisted by
Mr.K.Tippu Sultan
Government Advocate
COMMON JUDGMENT
S.VAIDYANATHAN,J.,
and
RVIJAYAKUMAR,J.,
The respondents in the writ petitions are the
appellants herein.
2.The Government of Tamil Nadu issued G.O.Ms.No.400
Home (Police XV) Department dated 07.06.2012 sanctioning
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558 additional posts of Sweepers in the Police Department.
As per the said G.O., a special time scale of pay of
Rs.1300-3000+ Grade Pay of Rs.300/- would be paid to the
appointed Sweepers. Further, it was stated that the 558
additional posts are sanctioned by surrendering the
existing 219 regular posts of Sweepers in the Police
Department. Pursuant to the said Government Order, the
writ petitioners were appointed in the special time scale
of pay. The appointment order of the writ petitioners
clearly indicated that their appointments are purely
temporary until the same is regularised by the Government.
The writ petitioners were issued the order of
regularization on various dates and granted regularization
from the date of their original appointments. The
probation period was also declared by the District Level
Authorities on various dates.
3.In the Education Department, the Scavengers were
appointed under a special time scale of Rs.1300-3000+
Grade Pay of Rs.300/- based on G.O.(Ms).No.47, School
Education (R.1) Department, dated 02.03.2012. The
Scavengers challenged the offending portion of the
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Government Order that fixed a special time scale of pay
for them instead of regular time scale of pay ie.
Rs.4800-10,000/- + Grade Pay of Rs.1300/-. This writ
petition was numbered as W.P.(MD)No.17663 of 2014 and the
Madurai Bench of Madras High Court allowed the writ
petition by striking down the offending clause in the said
G.O as un-sustainable. The learned Single Judge directed
to place the Scavengers on par with other Scavengers
already working in the Education Department by paying
regular time scale of pay of Rs.4800-10000/-+ Grade Pay of
Rs.1300/-. This order of the learned Single Judge was
challenged in W.A.(MD).No.1584 of 2018. The Hon'ble
Division Bench relied upon the Judgment of the Hon'ble
Supreme Court reported in 2017 (1) SCC 148 (in the case of
State of Punjab and others Vs.Jagjit Singh and others) and
2018 (14) Scale 765 (in the case of Sabha Shanker Dube
Vs.Divisional Forest Officer and others) and dismissed the
writ appeal on the ground that the payment of different
time scale of pay for similar work, violates the principle
of 'Equal Pay for Equal work'. This order of the Division
Bench was implemented by the Education Department by
issuing G.O(Ms).No.50, dated 08.03.2019.
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4.Taking Precedent from the order of the Division
Bench and implementation of the same by the Education
Department, the writ petitioners who are working as
Sweepers in the Police Department sent representations to
the appellants herein requesting them to be treated on par
with Scavengers in the Education Department. The writ
petitioners further requested that their time scale of pay
may be fixed on par with Scavengers in the Education
Department. Since the said request was not responded, the
writ petitioners filed the present batch of writ
petitions.
5.The writ petitioners contended that G.O.Ms.No.400
Home (Police XV) Department, dated 07.06.2012 is in
violation of Article 14 and 39 of the Constitution of
India. They further contended that they fall within the
category of Clause-D employees and there cannot be any
discrimination between the Scavengers in one department
and the Scavengers in other departments. They further
contended that the Sweepers and Scavengers fall within
Clause-IV of Tamil Nadu Basic Service Rules and hence,
there cannot be any differential time scale of pay between
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the same Clause of employees. The writ petitioners further
contended that the Scavengers working in the Education
Department are similarly placed persons. The duties and
responsibilities are similar in nature except that they
are working in a different department.
6.The learned Single Judge after hearing both the
parties, allowed the writ petitions by citing the Division
Bench Judgment made in W.A.No.1584 of 2018 dated
29.01.2019. Challenging the said order of the learned
Single Judge, passed on various dates, the batch of writ
appeals have been filed by the department.
7.The learned Additional Advocate General appearing
for the appellants contended that the writ petitioners
were originally appointed in the special time scale of pay
by creating additional post of Sweepers. He further
contended that these additional posts were created only
after surrendering 219 regular posts of Sweepers in the
Police Department. Hence, the petitioners were never
appointed in the regular post of Sweepers in the Police
Department.
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8.According to the learned Additional Advocate
General, the writ petitioners were appointed in a newly
created post of Sweepers and hence, fixing special time
scale of pay for newly created post cannot be said to be
discriminatory. He further contended that the order passed
with regard to the Education Department cannot be cited as
a precedent and sought to be implemented for the benefits
of the Sweepers appointed in the Police Department. He
further contended that all the regular post of Sweepers in
the Police Department which were vacant, have already been
abolished. Only if the writ petitioners are appointed in
the regular post of Sweepers, they will be entitled to
claim time scale of pay at the rate of Rs.4800-10000/- +
Grade Pay of Rs.1300/- .
9.The learned Additional Advocate General appearing
for the appellants further contended that the mode of
recruitment of the writ petitioners is completely
different in the sense that the petitioners were appointed
by the respective Battalions by calling for sponsorship
from the employment exchange of the respective districts.
Had it been an appointment to any regular post, it would
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have been done through the State level selection through a
notification calling for applications at the State level.
He further contended that the writ petitioners were
appointed under a Special G.O, and fixed a special time
scale of pay. He further contended that the writ
petitioners cannot be treated on par with other Sweepers
who were working in the regular post and who were selected
through a different recruitment process. He further
contended that even though the nature of work and the
responsibilities of the writ petitioners are definitely on
par with other regular employees, the mode of recruitment
and the selection process permits the State to treat the
writ petitioners as separate Clause of persons.
10.The learned counsel for the respondents contended
that all the employees are falling under Clause IV of
Tamil Nadu Basic Service Rules irrespective of the fact
whether they are appointed to the regular post or in a
specially created post. He further contended that the
petitioners are clearly on par with the other Scavengers
working in the Education Department. This Court has struck
down the special time scale of pay fixed for the
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Scavengers in the Education Department and the said order
of the learned Single Judge has been confirmed by the
Division Bench. He further contended that the order of the
Division Bench has also been implemented by the Education
Department by issuing Government Order by refixing the
time scale of pay on par with regular employees.
11.The learned counsel for the respondents further
contended that the Commander of the 10th Battalion had
issued an order on 10.04.2014, refixing the time scale of
pay with regard to six Sweepers and two Laundry Men under
which, they were given enhanced time scale of pay of
Rs.4800-10000/- + Grade pay of Rs.1300/-. When the same
department had issued orders based upon the orders of the
Court dated 14.07.2013 made in W.P.No.20499 of 2013, the
writ petitioners who are working in other Battalions
cannot be deprived of the same benefits.
12.The learned counsel for the respondents further
contended that the State Government has not stopped
recruiting Clause-IV employees under regular time scale of
pay. According to the learned counsel for the petitioners,
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as per proceedings dated 20.01.2020, the Jail
Superintendent, Central Prison, Kovai has called for
applications for appointment as Sweepers indicating the
time scale of pay of Rs.15700-50000/-. Hence, he contended
that the contentions of the learned Additional Advocate
General that the State Government has taken a policy
decision under G.O.(Ms).No.49, Personnel and
Administrative Reforms (F) Department dated 14.05.2002
that hereafter all the group-D employees will be appointed
only through outsourcing and entrustment will be made on
contract basis is not correct. Since the Government has
not implemented the said G.O and continues to resort to
regular appointment under Tamil Nadu Basic Service Rules,
the Government cannot now contend that all the regular
appointment to the posts of Sweepers and Scavengers have
been stopped and they have been out sourced.
13.The learned Additional Advocate General was
pleased to refer three judgments of the Hon'ble Supreme
Court namely (2010) 13 SCC Page 448 ( in the case of
Union of India and others Vs.A.S.Pillai and others),
(2011) 2 SCC Page 429 ( in the case of State of Rajasthan
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and others Vs.Dayalal and others) and another judgment of
the Hon'ble Supreme Court made in Civil Appeal No.3770 of
2017, dated 07.03.2017 (in the case of Secretary to
Government Commercial Tax and Registration Department and
another Vs.A.Singamuthu).
14.We have carefully considered these three
judgments. These three judgments relate to the issue of
regularization or absorption of the service of the
employees who were appointed as casual labours, temporary
employees or part time workers. In the present case, all
the writ petitioners are appointed in the sanctioned post
as full time employees and their services have already
been regularised. The State has also chosen to declare the
probation of the writ petitioners. The writ petitioners
have approached this Court only to revise their time scale
of pay on par with the regular employees. Hence, the above
judgements are not applicable to the facts of this case.
15.The issue that now arises for consideration is
that whether the writ petitioners should be treated on par
with Sweepers/Scavengers working in the regular vacancies
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in the same department and also on par with the
scavengers working in the Education Department with regard
to parity of pay scale. The Hon'be Supreme Court in a
judgment reported in AIR 2019 Page 2521 ( in the case of
State of Bihar Vs.Bihar Secondary Teachers Struggle
Committee, Munger) in para 68 has held as follows;
“68.Analysis of the decisions referred to
the above shows that this Court has accepted
following limitations or qualifications to the
applicability of the doctrine of 'equal pay for
equal work'.
(i)The doctrine of 'equal pay for equal
work' is not an abstract doctrine.
(ii)The principle of 'equal pay for equal
work' has no mechanical application in every
case.
(iii)The very fact that the person has not
gone through the process of recruitment may
itself, in certain cases, makes a difference.
(iv)The application of the principle of
'equal pay for equal work' requires
consideration of various dimension of a given
job.
(v)Thus normally the applicability of this
principle must be left to be evaluated and the
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determined by an expert body. These are not
matters where a writ Court can lightly
interfere.
(vi) 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.
(vii)Equation of posts and salary is a complex
matter which should be left to an expert body.
(viii)Granting of pay parity by the court
may result in a cascading effect and reaction
which can have adverse consequences.
(ix)Before entertaining and accepting the
claim based on the principle of equal pay for
equal work, the Court must consider the factors
like the source and mode of
recruitment/appointment.
(x)In a given case, mode of selection may
be considered as one of the factors which may
make a difference”
16.The Hon'ble Supreme Court in the said case has
held that the mode of selection should be considered as
one of the factors to decide whether the parity of pay can
be granted to two sets of employees. In the said case, one
set of teachers were selected under Special Rules and
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other set of teachers were selected through the service
commission. Though the nature of work and the
responsibilities of both the sets of teachers were one and
the same and they were working in the same School, the
Hon'ble Supreme Court was pleased to hold that since the
mode of recruitment is completely different between the
two sets of teachers, the doctrine of equal pay for equal
work cannot be invoked. The said judgment of the Hon'ble
Supreme Court was followed by the Full Bench of our High
Court reported in 2021 (2) CTC Page 801 ( in the case of
State and others Vs.S.Rajaram and others). The Hon'ble
Full Bench while considering the issue of parity of pay
scale between the vocational instructors appointed, prior
to the introduction of G.O.(Ms).No.129 dated 18.05.1999
and those appointed subsequent to the G.O, held that both
the set of teachers stand on a different footing though
the nature of work performed by them are almost the same.
17.The Hon'ble Full Bench was also pleased to hold
that a complete and wholesale identity is required and a
mere overlapping of the functions and responsibilities are
not enough. The Hon'ble Full Bench set aside the order of
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the learned Single Judge and dismissed the writ petition
filed by the Vocational Instructors seeking parity of time
scale of pay.
18.In the present case, the Police Department has
chosen to surrender 219 regular posts of Sweepers which
were vacant. Only in lieu of 219 regular posts, 558
additional posts of Sweepers have been sanctioned. Even as
per G.O(Ms).No.400 dated 07.06.2012, under which the writ
petitioners were appointed, this special time scale of pay
has been mentioned. The writ petitioners were very well
aware, even at the time of their appointments, that they
are not appointed to the regular posts of Sweepers, but
appointed only in a newly created additional posts of
Sweepers under a special Government Order with special
time scale of pay. They were recruited through the
sponsorship of the employment exchange and appointed by
the respective district level authorities and their
appointments were purely temporary as per the appointment
orders. Later, they were regularised in service with
effect from the date of their initial appointments. The
above said facts will indicate that the mode of
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recruitments and the selection process are completely
different from that of the employees recruited and
selected to the regular post of Sweepers. The recruitment
and selection of the petitioners were made only based upon
the G.O(Ms).No.400 dated 07.06.2012 which clearly
indicates the special time scale of pay also. Now, taking
advantage of the some benefits being conferred upon the
Sweepers of the other departments, the writ petitioners
have chosen to challenge the very Government order, under
which they were appointed.
19. As on today, there are no vacant regular post of
Sweepers in the Police Department. The posts in which the
writ petitioners were appointed are special posts created
under G.O(Ms).No.400, dated 07.06.2012. Hence, the
question of seeking 'equal pay for equal work' cannot be
invoked, when the mode of recruitment and selection
process are completely different. On the date of their
appointments, all the regular posts have already been
surrendered.
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20.The writ petitioners further contended that the
Scavengers working in all the departments should be
treated equally and equal pay should be granted to all
these Scavengers cannot be countenanced in the light of
the judgement of the Hon'ble Supreme Court in AIR 2019 SC
Page 2521, especially on the ground that the mode of
recruitment and the selection process of the subject post
and the reference post are completely different.
21.The learned counsel for the petitioners referred a
Division Bench judgment of this Court in W.A.Nos.2497 and
497 of 2018 in which one of us (Mr.Justice.S.Vaidyanathan)
is a party. In the said case, the Government had passed
G.O.Ms.No.338 dated 26.08.2010 extending the parity of pay
to all the technical category posts in all the Government
Departments and local bodies. The writ petitioners in
those cases approached the High Court contending that the
said G.O has not been implemented in respect of soap
chemists employee in Khadi Board. Hence, the issue before
the Bench was whether the soap chemists in Khadi Board
were entitled to the benefit under G.O.Ms.No.338 dated
26.08.2010. But, in the present case, no such Government
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Order has been passed granting pay parity. On the other
hand, the Government is opposing the pay parity on the
ground that the mode of selection is different. Hence, the
ratio in the said Judgment is not applicable to the facts
of the present case.
22.The learned Single Judge has allowed the writ
petition and quashed the offending portion of the G.O.,
only based upon the order passed by the Division Bench in
W.A.No.1584 of 2018 dated 29.01.2019 with regard to the
Education Department. The Judgment of the Hon'ble Supreme
Court in AIR 2019 SC Page 2521 is dated 10.05.2019 and the
same has been followed by the Full Bench of our High Court
reported in 2021 (2) CTC Page 801 dated 05.03.2021.
23.In view of the later Supreme Court judgement and
the Full Bench Judgment of our High Court, allowing of the
writ petition based upon the Division Bench order dated
29.01.2019 is not sustainable in the eye of law. The
Hon'ble Supreme Court in AIR 2019 SC page 2521 has held
that the different mode of recruitment and selection
process will limit the scope of invoking the principle of
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'equal pay for equal work'. In the instant case, the
recruitment process between the subject post and reference
post are completely different. Hence, the writ petitioners
will not be entitled to claim pay parity on par with
employees appointed to the regulars posts.
24. It is to be noted that while relying on a
judgment, if it is found that the factual situation
totally differs, then there is no compulsion for the
subordinate courts to blindly rely on the same to arrive
at the same conclusion, as held by the Hon'ble Supreme
Court in the case of Padmasundara Rao (Dead) & others vs.
State of Tamil Nadu and others, reported in (2002) 3 SCC
533, as follows:
"Courts should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the
decision on which reliance is placed. There is
always peril in treating the words of speech or
judgment as though they are words in a legislative
enactment, and it is to be remembered that
judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in
Herrington vs. British Railways Board (1972) 2 WLR
537. Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases."
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25. In the light of the aforesaid judgment, we want
to point out that the decision rendered by the Supreme
Court reported in AIR 2019 SC page 2521 (supra) may not be
applicable to all cases and may be applied, depending upon
the facts and circumstances of each case. For example, a
person would have had the benefit of the award of the
Labour Court / Tribunal, Authority under Shops Act and the
like and he cannot be simply deprived equal pay for equal
work, citing the said judgment. Further, yet situation may
arise, wherein the provisions of Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act,
1981 may be applicable and the persons would not have been
directly recruited following due procedures, but would have
been absorbed pursuant to completion of 480 days of continuous
service in a period of 24 calendar months against sanctioned
posts. In that context, they are deemed to have attained
permanent status and at that stage, the adoption of a different
yardstick on the basis of the judgment of the Supreme Court
with regard to the extension of pay scale may not be correct.
26. With the above observations and discussions, these
writ appeals are allowed and the orders of the learned
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Single Judge are set aside and the writ petitions stand
dismissed. Since some of the writ petitions with similar
prayer have been tagged with the writ appeals, those writ
petitions are also dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
(S.V.N.J.,) (R.V.J.,)
20.12.2021
Index :yes
Internet :yes
msa
Note:In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
Advocate/litigant concerned.
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W.A.No.2088 of 2021 batch case
S.VAIDYANATHAN,J.
AND
R.VIJAYAKUMAR,J.
msa
To:
1.The Secretary to Government
Home Department
Fort St.George
Chennai 600 009
2.The Director General of Police
Chennai 600 004
3.The Inspector General of Police
Central Zone
Trichy 620 001
4.The Superintendent of Police
District Police Office
Thiruvarur
5.The Superintendent of Police
District Police Office
Trichy Rural District
Pre-delivery Judgment made in
W.A.Nos.2088 and 2043 of 2021,
W.P.Nos.21901 and 22226 of 2019,
13308 and 13324 of 2020
20.12.2021
https://www.mhc.tn.gov.in/judis
