The Original Application in O.A.No.967 of 2002 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2.The following are the undisputed facts:
a) The present Kanyakumari District had been a part of the erstwhile Travancore Cochin State , prior to the enactment of the State Reorganisation Act, 1956. The village administration of erstwhile Travancore Cochin State was manned by full-time regular village level staff, such as Village Officer, Village Assistant, Copyist and Village Men. Consequent on the reorganisation of States, the Kanyakumari District got amalgamated with the State of Tamil Nadu. Consequently, the village level staff of erstwhile Travancore Cochin State employed in Kanyakumari District were absorbed into the service of Tamil Nadu Government.
b) While the village level staff in Kanyakumari District were full time employees, as stated above, the village administration was manned by part-time hereditary Village Officers viz., Village Headmen (Munsif) and Village Karnam in the rest of the parts of the State of Tamil Nadu.
c) In the year 1980, the Government of Tamil Nadu promulgated an Ordinance i.e. Tamil Nadu Ordinance No.10 of 1980, to abolish the post of part-time hereditary Village Officers in the State of Tamil Nadu. While part-time Village Officers posts were abolished, a new system of full-time officers was introduced. That is, Village Administrative Officers were appointed to man village administration. The post of Village Administrative Officer was brought within the purview of Tamil Nadu Public Service Commission, through competitive examination.
d) While part-time Village Officers posts were abolished, Section 10 of the Ordinance permitted the existing Village Assistants and Village Officers to continue in Kanyakumari District as they were already full-time Government employees.
e) The part-time Village Officers approached the Honourable Supreme Court challenging the validity of the Ordinance. While upholding the Ordinance, the Honourable Supreme Court directed the Tamil Nadu Government to provide employment to the erstwhile part-time Village Officers, who were sought to be terminated, the post of Village Administrative Officers, if they were otherwise qualified to hold the post of Village Administrative Officers. Hence, the Screening Committees at State level and District level were constituted to select eligible and qualified persons from among the ex-part time Village Officers for appointment as Village Administrative Officers.
f) In Kanyakumari District also, part-time Village Officers were appointed in the vacancies that arose in the post of Village Assistants / Village Officers, after the District came to be amalgamated with the State of Tamil Nadu. There were 73 such part-time Village Officers and 47 of them were appointed as Village Administrative Officers, after the Screening Committee cleared them.
g) In respect of 34 Villages, where the Travancore Cochin State pattern Village Officers and Village Assistants were working, they were grouped together at the ratio of 1:1 per village and were appointed to carry out the duties connected with village administration.
3.The petitioners were Village Assistants among those 34 employees. They were promoted as Village Officers from 05.11.1986 and 20.02.1985 respectively. The Village Assistants and Village Officers were governed by the Service Rules framed under
Article 309 of the Constitution, called the Tamil Nadu Village Officers (Transferred Territories) Service Rules, 1983 and that was given retrospective effect from 01.11.1956. The Village Officers were not paid the same salary as paid to the Village Administrative Officers. Therefore, they were claiming parity with Village Administrative Officers. It is their case that they were doing the same duties as carried out by the Village Administrative Officers and that therefore, they are entitled to be paid the same wages.
4.The Village Assistants were recruited through District Collector. The Village Officers were promoted from among the Village Assistants. A person should possess a pass in the Secondary School Leaving Certificate with an endorsement of eligibility for admission to College Course, for appointment to the post of Village Assistants / Village Officers. The Village Officers claimed that since the educational qualification prescribed for the post of Village Administrative Officer was also the same and since the Village Officers are discharging the same and similar duties as that of Village Administrative Officers, they should be paid the same salary, as paid to the Village Administrative Officers.
5.Ultimately, the first respondent considered the demand of Village Officers and issued G.O.Ms.No.933, Revenue Department, dated 04.11.1993, granting the Village Officers the same pay, as given to the Village Administrative Officers, but with effect from 01.04.1993.
6.Thereafter, the Village Officers took various efforts and made various representations and also passed resolutions in the Village Administrative Officers' Association and also approached the Government through the local Member of Legislative Assembly, Thiruvattar, seeking parity from the date of appointment of Village Officers, instead of from 01.04.1993. But their efforts were not successful.
7.In the said circumstances, the petitioners filed Original Application in O.A.No.967 of 2002 (W.P.No.5201 of 2007) praying to quash para-2 alone of G.O.Ms.No.933, dated 04.11.1993 that granted parity in pay only from 01.04.1993 and consequently, to direct the respondents to fix them the scale of pay, as applicable to Village Administrative Officers, from the date of their promotion as Village Officers and to direct the respondents to pay arrears of salary and other allowances as applicable to the Village Administrative Officers.
8.Heard Mr.S.James, learned counsel for the petitioner and Mr.P.Muthukumar, learned Government Advocate for the respondents and I have perused the entire materials available on record including the detailed reply affidavit filed by the respondents.
9.In the reply affidavit, the first respondent has admitted in paras 8, 12 and 18 that the duties and responsibilities of Village Administrative Officers and Village Officers are similar in nature. The relevant passage in paras 8, 12 and 18 are as follows:
"8........ the duties and responsibilities of Village Administrative Officers and Village Officers are similar in nature.........
12.......... the duties and responsibilities of Village Administrative Officers and Village Officers are similar in nature.........
18.......... there is close similarity between the duties performed by the Village Administrative Officers and Village Officers......."
10.While the reply affidavit admits that the duties and responsibilities of the Village Administrative Officers and Village Officers are similar in nature, it is stated that the recruitment rules are different and that therefore (1) the mode of appointment (2) training and (3) probation and (4) a special test to be passed for the two posts viz., Village Officers and Village Administrative Officers were different, and that therefore, prescribing different scale of pay to the two posts were justified.
11.As far as educational qualification is concerned, as stated above, it is same for both the Village Officers and Village Administrative Officers.
12.I am of the considered view that when the Village Officers and Village Administrative Officers do the same duties of managing the villages, they should be paid the same wages and prescribing different scales of pay is discriminatory and violative of
Article 14 of the Constitution. They cannot be discriminated on the ground that the Service Rules are different and those Service Rules provide different mode of recruitment, training, probation and special tests to be passed for two posts.
13.The first respondent cannot defeat the constitutional right of equal pay for equal work guaranteed under
Article 39(d) of the Constitution to the Village Officers, on the ground that they are governed by one set of Service Rules and the Village Administrative Officers are governed by other set of service rules.
Article 39(d) read with
Article 14 of the Constitution enjoins on the first respondent to provide same scale of pay, while extracting same duties from its employees.
14.In fact, I have gone through the service rules and while the recruitment to the post of Village Administrative Officers are done through TNPSC, the appointment to the post of Village Assistants / Village Officers were done by the District Collector as per the rules. The Village Assistants / Village Officers were sponsored through Employment Exchange and only after the selection process contemplated under the rules, persons were selected to the post of Village Assistants / Village Officers. Therefore, the distinction as to mode of appointment cited by the first respondent in the reply affidavit for prescribing different scale of pay, has no substance. Particularly, when the educational qualification prescribed to both the posts are same, the first respondent should have given the same scale of pay, when the post of Village Administrative Officers was created.
15.It is stated in the reply affidavit that while the Village Officers have to pass the special tests in:
(1)powers and duties of Village Administrative Officers (2)Village Sanitation the Village Administrative Officers have to pass the special tests in
1.powers and duties of Village Administrative Officers
2.Village Sanitation
3.Manual of Village accounts This is stated as one of the reasons for differential treatment. Firstly, this distinction is of no use to deny the equal pay to the Village Officers. However, I have gone through the Tamil Nadu Village Officers (Transferred Territories) Service Rules 1983. As per the rules, the following are the special tests for the Village Officers and Village Assistants:
16.The reply only gives the special tests that were to be passed by the Village Officers. But the Village Officers are promoted from Village Assistants. While Village Officers were working as Village Assistants, they passed the test for the post of Village Assistants as stated above. Hence, the Village Officers also passed all the special tests that are required for Village Administrative Officers. Moreover, the reply states that only in 34 villages, the Village Officers and Village Assistants were working and they were grouped together at the ration of 1:1 per village as found in para 8 of the reply affidavit.
17.Further, it is also stated that the post of Village Assistants / Village Officers are fading posts and no recruitment to those posts are made. That is, whenever the Village Officers are retired, those posts are filled by Village Administrative Officers. For this reason alone, the Village Officers should have been paid the same scale of Village Administrative Officers. It is stated in para 15 of the reply affidavit as follows:
".........The said posts of Village Officers were in existence till the retirement of the persons who held the post and it was replaced by Village Administrative Officers in a phased manner on the retirement of the persons who held the post......"
18.The learned counsel for the petitioners also contends that the Village Officers are transferred and posted in the place of Village Administrative Officers and Village Administrative Officers are transferred and posted in the place of Village Officers. He has also produced an order dated 26.08.1997, transferring the first petitioner from Suseendharam to Kottar, where the Village Administrative Officer was employed. Therefore, when the petitioners were asked to carry out the same duties of the Village Administrative Officers while they are employed as Village Officers, they should have been given the scale of pay of Village Administrative Officers also. The learned counsel for the petitioners relied on the following decisions of the Honourable Apex Court in support of his claim for parity from their date of appointment.
1) BHAGWAN DASS AND OTHERS, VS. STATE OF HARYANA AND OTHERS reported in AIR 1987 SC 2049
2) JAIPAL AND OTHERS VS. STATE OF HARYANA AND OTHERS reported in 1988 (3) SCC 354
3) BHAGWATI PRASAD VS. DELHI STATE MINERAL DEVELOPMENT CORPORATION., (W.P.NO.100 OF 1988) WITH BHAGWATI DEVI AND OTHERS VS. DELHI STATE MINERAL DEVELOPMENT CORPOATION (WRIT PETITION NO. 1078 OF 1988) reported in 1989 INDLAW SC 347
4) VIJAY SHARMA AND OTHERS VS. STATE OF PUNJAB AND OTHERS reported in 2001 INDLAW PNH 381
19.In the judgment reported in 1989 INDLAW SC 347, the Honourable Apex Court held that even if unqualified persons hold a post, they should not be denied the pay attached to the post since those persons would gain sufficient experience in the actual discharge of their duties. The following passage is relied on by the learned counsel for the petitioner:
"............. The main controversy centres round the question whether some petitioner are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation....."
20.It is argued that even when the unqualified persons are granted the same scale of pay based on the experience, the petitioners are also entitled to the scale of pay applicable to the Village Administrative Officers when they admittedly posses the required qualification.
21.The relevant passage in AIR 1987 SC 2049 is extracted here-under; wherein equal pay was granted, though mode of recruitment was different.
"11..... The latter are whole-time employees selected by the subordinate services Selection Board after competing with candidates from any part of the country. In the case of petitioners, normally the selection at best is limited to the candidates from the cluster of a few villages only. The contention made by the petitioners has no justifiable basis.
......Assuming that the selection of the petitioners has been limited to the cluster of a few villages, whereas respondents 2 to 6 were selected by another mode wherein they had faced competition from candidates from all over the country, we need not examine the merits of these modes for the very good reason that once the nature and functions and the work are not shown to be dissimilar the fact that the recruitment was made in one way or the other would hardly be relevant from the point of view of "equal pay for equal work" doctrine. It was open to the State to resort to a selection process whereat candidates from all over the country might have competed if they so desired. If however they deliberately chose to limit the selection of the candidates from a cluster of a few villages it will not absolve the State from treating such candidates in a discriminatory manner to the disadvantage of the selectees once they are appointed,.................
................So also they might not have been tempted to, compete for these posts in view of the fact that the Scheme itself was for an uncertain duration and could have been discontinued at any time. Be that as it may, so long as the petitioners are doing work which is similar to the work performed by respondents 2 to 6 from the standpoint of "equal work for equal pay" doctrine, the petitioners cannot be discriminated against in regard to pay scales. Whether equal work is put in by a candidate selected by a process whereat candidates from all parts of the country could have competed or whether they are selected by a process where candidates from only a cluster of a few villages could have completed (competed) is altogether irrelevant and immaterial, for the purposes of the applicability of "equal work for equal pay" doctrine. A typist doing similar work as another typist cannot be denied equal pay on the ground that the process of selection was different inasmuch as ultimately the work done is similar and there is no rational ground to refuse equal pay for equal work..........
.............That however is altogether a different matter. It is possible that he might not have been selected at all if he had to compete against candidates from all over the country. But once he is selected, whether he is selected by one process or the other, he cannot be denied equal pay for equal work without violating the said doctrine. This plea raised by the respondent-State must also fail."
22.The relevant passage in 1988 (3) SCC 354 is as follows, wherein also equal pay was granted, though mode of recruitment was different.
"8.The respondents' contention that the mode of recruitment of petitioners is different from the mode of recruitment of squad teachers inasmuch as the petitioners are appointed locally while squad teachers were selected by the Subordinate Service Selection Board after competing with candidates from any part of the country. Emphasis was laid during argument that if a regular selection was held many of the petitioners may not have been appointed they got the employment because outsiders did not compete. In our opinion, this submission has no merit. Admittedly the petitioners were appointed on the recommendation of a Selection Committee appointed by the Adult Education Department. It is true that the petitioners belong to the locality where they have been posted, but they were appointed only after selection, true that they have not been appointed after selection made by the Subordinate Service Selection Board but that is hardly relevant for the purposes of application of doctrine of "equal pay for equal work". The difference in mode of selection will not affect the application of the doctrine of "equal pay for equal work" if both the classes of persons perform similar functions and duties under the same employer. Similar plea raised by the State of Haryana in opposing the case of supervisors in the case of Bhagwan Dass was rejected, where it was observed that if the State deliberately chose to limit the selection of candidates from a cluster of a few villages it will not absolve the State from treating such candidates in a discriminatory manner to the disadvantage of the selectees once they are appointed provided the work done by the candidates so selected is similar in nature. The recruitment was confined to the locality as it was considered advantageous to make recruitment from the cluster of villages for the purposes of implementing the Adult Education Scheme because the instructors appointed from that area would know the people of that area more intimately and would be in a better position to persuade them to take advantage of the Adult Education Scheme in order to make it a success".
23.For the above said reasons, the petitioners are entitled to the scale of pay of the Village Administrative Officers from the date of their promotion to the post of Village Officers. Accordingly, para 2 of the G.O.Ms.No.933, dated 04.11.1993, in so far as granting same pay to the Village Officers as that of Village Administrative Officers only with effect from 01.04.1993 is quashed and the first respondent is directed to fix the scale of pay of the petitioners as applicable to Village Administrative Officers from the date of their promotion as Village Officers and to pay the arrears within a period of four weeks from the date of receipt of a copy of this order. The first respondent is directed to pay the revised pension and terminal benefits based on the revised pay, since the petitioners were retired from service.
24.The writ petition is allowed on the above terms. No costs.
09.10.2009 Index : Yes/No Internet : Yes/No TK To
1.The Secretary to Government Revenue Department Fort St.George, Chennai 9.
2.The District Collector Kanyakumari District, Kanyakumari.
D.HARIPARANTHAMAN, J.
TK W.P.No.5201 of 2007 09.10.2009