GOVERNMENT, HOME (CTS.V) DEPARTMENT, SECRETARIAT, CHENNAI.
2 THE REGISTRAR GENERAL, HIGH COURT, MADRAS (R2 IMPLEADED VIDE COURT ORDER DT 18/12/2018, MADE IN WMP.NO.39302/18 IN WP.NO.22730/18 BY MVJ AND RPAJ) Writ Petition under
Article 226 of the Constitution of India praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to issue an order or a direction or a writ or a writ more specifically of Writ of Mandamus directing the respondent to accept and implement the recommendation of the Honourable Chief Justice of Madras High Court, as communicated by the Registrar General, vide. his letter in Roc.No.61942/B/ 2016/G2, dated 10.02.2017 for the revision of the pay structure in favour of the staff of the Honourable High Court, Madras on par with the pay structure of the staff of the http://www.judis.nic.in Honourable Supreme Court of India with in a time frame as may be fixed by this Honourable Court (WP.22730/2018) Order : This petition coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of M/S.J.NAGARAJAN, Advocate for the petitioner and of MR.A.ANSAR, Government Advocate on behalf of the 1st respondent and of M/S.DURAI EASWAR, Advocate for the 2nd Respondent the court made the following order:-
The Petitioners in the present Writ Petition has sought for passing of an order by this Court in directing the 1st Respondent to accept and implement the recommendation of the Hon'ble Chief Justice of Madras High Court, as communicated by Registrar General through letter in RoC.No.61942/B/2016/G2, dated 10.02.2017 for the revision of the pay structure in favour of the staff of the Hon'ble Supreme Court of India within a frame as may be determined by this Court.
2.According to the Petitioners, the Hon'ble High Court is one of the three pillars of the world's biggest Democracy. As a matter of fact, once pay disparity was claimed with that of the service of the State Secretariat and it was granted after much persuasion and deliberation. Furthermore, this parity claimed was lower than the pay structure of both the Hon'ble Supreme Court of India and the Hon'ble Delhi High Court.
3.The stand of the Petitioners is that the service of the Hon'ble High Court requires high calibre and also requires late hour sitting after the Office Hours. Because of the nature of same service condition and work nature of the Hon'ble Supreme Court and all the High Courts, the pay structure would be on the basis of 'Equal Pay for Equal Work'. Indeed, the pay structure of Delhi High Court is on the higher side than the other other High Courts and equivalent to the Hon'ble Supreme Court. In reality, the nature of duties is one and the same for all High Courts in India and the Hon'ble Supreme Court, the pay structure of the various cadres under all categories of this Hon'ble High Court are at alarming variance.
4.The version of the Petitioners is that the pay structure of the Hon'ble Karnataka High Court was enhanced to the level of Hon'ble Supreme Court of India after a Court's Order. Further, the Petitioners' Association made an earnest Appeal to the Hon'ble Chief Justice in regard to their claim/demand for pay structure on par with that of the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi and in this regard, had submitted a Representation dated 08.08.2016. The said Representation of the Petitioners' Association was forwarded by the 2nd Respondent/ Registrar General, High Court, Madras to the 1st Respondent/ Principal Secretary to Government, Home (Courts-V) Department, Secretariat, Chennai with the recommendation of Hon'ble Chief Justice for grant of enhanced pay structure in favour of the Staff Members of the Madras High Court on par with the pay structure of the Hon'ble Supreme Court of India. That http://www.judis.nic.in apart, such a recommendation of the Hon'ble Chief Justice of this Court was communicated by the 2nd Respondent/Registrar General, High Court, Madras on 10.02.2017 in RoC.No.61942/B/2016/G2 to the Government for issuance of necessary orders.
5.It comes to be known that the 2nd Respondent/Registrar General, High Court, Madras had addressed a communication in RoC.No.61942/B/2016/G2 dated 10.02.2017 to the 1st Respondent/ Principal Secretary to Government, Home (Cts.V) Department, Secretariat, Chennai forwarding the proposal (as regards the representation submitted by the Madras High Court and Madurai Bench Officers and Staff Association, High Court, Madras dated 08.08.2016) pertaining to the revision of pay structure on par with the Hon'ble Supreme Court of India.
6.Moreover, in the further mentioned communication dated 10.02.2017, the 2nd Respondent/Registrar General, High Court, Madras had stated that the proposal for the enhanced pay, in regard to certain categories of posts is based on the similar pay band of other categories in the Hon'ble Delhi High Court and also taking into consideration, the hierarchy of categories and their pay scales in the Madras High Court Service and also a comparative analysis regarding the pay structures of various High Courts, was done and the pay structure proposed is based on the Delhi High Court pay structure.
7.It transpires that the subject matter in issue was placed before the Hon'ble Staff Grievance Committee and the said Committee had directed the Office of the Registry to address the Government for earliest consideration. Besides this, it is the plea of the Petitioners that the Hon'ble Staff Grievance Committee's direction was approved by the Hon'ble Chief Justice of this Court, as made mention of by the 2nd Respondent in the communication in RoC.No.61942/B/2016/G2 dated 10.02.2017.
8.On behalf of the Petitioners, the Learned Counsel for the Petitioners cites the decision of the Hon'ble Supreme Court in Union of India and another V. S.B. Vohra and others, (2004) 2 SCC 150 at special page 152, wherein it is observed as under:
“Clause 2 of
Article 229 of the Constitution of India empowers the Chief Justice of the High Court to prescribe by rules the conditions of service of Officers and servants of the High Court. Such Rule shall, however, be subject to: (1) the provision of any law made by the legislature of the State;
and (2) the approval of the President/Governor of the State so far as it relates to salary, allowances, leave or pensions. Independence of the High Court is an essential feature for working of the democratic form of the Government in the country. An absolute control, therefore, have http://www.judis.nic.in been vested in the High Court over its staff which would be free from interference from the Government subject of course to the limitations imposed by the said provision.
There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause 2 of the Article of the Constitution of India and the proviso appended thereto. Approval of the President/ Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course. (Paras 10 and 11) The matter as regards fixation of scale of pay of the officers working in the different High Courts must either be examined by an expert body like the Pay Commission or any other body but in absence of constitution of any such expert constitutional provisions existing in this behalf in terms of
Article 229 of the Constitution.
(Para 49) The question as regards fixation of a revision of the scale of pay of the High Court being within the exclusive domain of the Chief Justice of the High Court, subject to the approval, it is the primary duty of the Union of India or the State concerned normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. In this case, the appellants, admittedly, have failed and/or neglected to perform a constitutional duty.
(Paras 51, 46 and 44) It is not always helpful to raise the question of financial implications vis-a-vis the effect of grant of a particular scale of http://www.judis.nic.in pay to the officers of the High Court on the ground that the same would have adverse effect on the other employees of the State. Scale of pay is fixed on certain norms: one of them being the quantum of work undertaken by the officers concerned as well as the extent of efficiency, integrity etc. required to be maintained by the holder of such office. (Para 48)
9.Added further, in the aforesaid decision, at page 153, it is mentioned as under:
“In a matter of this nature the appellant, with a view to show that its action is reasonable, was bound to perform its duties within a reasonable time. Reasonableness being the core of Article 14 of the Constitution of India would imply that the constitutional duties be performed within a reasonable time so as to satisfy the test of reasonableness adumbrated under
Article 14. In this case the appellants even addressed themselves on the recommendations made by the High Court. They could not have treated the matter lightly. It is unfortunate tha the recommendations made by a high functionary like the Chief Justice were not promptly attended to and the private respondents had to file a writ petition. (Paras 47 and 51)”
10.Moreover, in the aforesaid decision, at page 164, it is observed that '... It is trite that the Court will not exercise its jurisdiction to entertain the writ application wherein public law element is not involved.'
11.The Learned Counsel for the Petitioners refers to the Judgment in Writ Appeal No.4411/2011(S-RES) [between Nijaguni, Bangalore V. The High Court of Karnataka, represented by its Registrar General, Bangalore and another] wherein at paragraphs 29 to 32, it is observed as under:
“29.As provided under the relevant provisions of the Constitution of India read with the ruling of the Apex Court in the matter of Union of India V. S.B.Vohra, it is not open for the respondents -Government to turn down the recommendations which are normally made by the Hon'ble Chief Justice of High Court in exercise of his powers under Articles 229(2) of the Constitution of India. When the Government itself does not have such a power.
It is unfortunate that the Principal http://www.judis.nic.in Secretary, Department of Finance assumes the power of rejecting the recommendation of the Hon'ble Chief Justice without even placing the same before the Cabinet. The same is highly deplorable and calls for placing it on record with a direction to the Government to issue stern warning to such officers in exceeding their limits while discharging their duties.
30. It is seen as rightly submitted by the Counsel for appellant and as well as the respondent that there is some amount of confusion on the part of counsel when they submitted their arguments before the learned Single Judge in not placing before him all the relevant material regarding the committee being formulated by the Hon'ble Chief justice. On going through the letter which is now produced by the appellant along with additional facts it is seen that pursuant to a representation made by the Secretary and Vice President of the High Court employees association, the Hon'ble Chief Justice by a notification in No.HCE.228/2011 dated 08.02.2011 constituted a committee headed by the Hon'ble Justice V.G.Sabhahit accompanied by two other Hon'ble Judges of the High Court of Karnataka to examine the request of the High Court Employees Welfare Association with reference to the up-gradation of posts of Deputy Registrars and Assistant Registrars to the next Higher pay scale, to restructure all the posts of section Officers, Court Officers and others by fixing one higher pay scale to bring it on par with the employees of the subordinate courts in terms of FNJCP recommendation, sanctioning one additional increment to officials working in the cadre of FDA, Stenographer, SDA and others in terms of FNJCP recommendation and sanctioning one additional increment to all Group C and D officials instead of different allowances.
31. The reading of said notification clearly discloses that the recommendation that is required to be made by the committee constituted by the Hon'ble Chief Justice on 08.02.2011 is not with reference to the relief sought for in the writ petition. It is further seen as rightly submitted by the counsel for both parties that this http://www.judis.nic.in notification was not placed before the learned Single Judge while disposing of the Writ Petition. In the absence of the aforesaid material, relying upon the submission made by the learned counsel for the petitioner and respondents who are respectively appellant and respondents herein, the learned Single Judge proceeded to dispose of the writ petition with the observations referred to supra.
32. Therefore, in the light of the aforesaid discussion and in the light of the ratio laid down by the Full Bench of the Bombay High Court in Chanrakant Sakharam Karkhanis case followed by the Division Bench of the Gujarath High Court in the matter of K.K.Parmar's case, it has now become necessary that this Court will have to hold that the contents of letter dated 06.10.2004 issued by the Hon'ble Chief Justice of High Court of Karnataka in itself are the rule framed pursuant to
Article 229(2) of the Constitution with reference to the fixation of revised pay scale to the employees of the High Court of Karnataka. Accordingly, the same should be placed by the State Government before its cabinet at the earliest and dispose of the same in the light of the observations made by the Apex Court in the matter of Union of India V. S.B.Vohra, AIR 2004 SC 1402” and resultantly, allowed the appeal by quashing Annexure-C to the writ petition and further, the Government was directed to place the recommendation of the Hon'ble Chief Justice of Karnataka dated 06.10.2014 before the Cabinet at the earliest and to take appropriate decision to implement the recommendation of the Hon'ble Chief Justice of High Court of Karnataka dated 06.10.2004 in the light of the observations made by the Apex Court in the matter of Union of India V. S.B.Vohra, AIR 2004 SC 1402 as expeditiously as possible.
12.As seen from the proceedings of the Government of Karnataka on the subject 'Grant of Central Government Pay Scales to the Employees of the Hon'ble High Court of Karnataka', there is a reference to the order dated 18.09.2017 of the Hon'ble Supreme Court in S.L.P.(C).No.23220-23221/2017 which came to be dismissed and direction was issued to the State Government/ Appellant to comply with the orders of the Hon'ble High Court of Karnataka and to report compliance within four months from the date of order. Pursuant to the order of the Hon'ble Supreme Court in the aforesaid S.L.Ps, the State Government issued G.O.No.FD 38 http://www.judis.nic.inSRP 2017 Bangalore, dated 11th January 2018 wherein it is mentioned as under:
“Government are pleased to accord financial concurrence on the approval of the Governor under
Article 229(2) of the Constitution of India to the proposed Rule of the Hon'ble Chief Justice of the Karnataka High Court as sought in letter dated 06.10.2004 to extend the Central Government Pay Scales to the Employees of the High Court of Karnataka.
2. Law Department shall constitute a Joint Consultative Committee in consultation with the High Court of Karnataka with the following terms and conditions.
i) The Joint Consultative Committee shall consists of Members from the High Court of Karnataka and State Government.
ii)The Committee shall work out a suitable fitment table by determining the equivalence of posts between different category of posts in the High Court of Karnataka and in the Central Government.
recommendations of the Committee shall be intimated to the State Government.”
13.In this connection, this Court pertinently points out that the 2nd Respondent/Registrar General, High Court, Madras had addressed a communication in RoC.No.61942/B/2016/G2 dated 10.02.2017 to the 1st Respondent wherein it is observed as under: “The existing pay structure in the Madras High Court (as per 6th Central Pay Commission), for different cadres are illustrated as under:
S.No Cadres Existing Pay Band 1 Registrars, Official Assignee and Pay Band 4 Joint Registrars 2 Deputy Registrars, Assistant Pay Band 3 Registrars, Court Managers, Sub Assistant Registrars, Librarian,
C.O/S.O./A.E and Court Fee Examiners, P.A to Hon'ble Judges, P.S.to Registrar General and Interpreters 3 Assistant Section Officers including Pay Band 2 Translators, Assistant Court Fee Examiner, Technical Assistant to http://www.judis.nic.in Librarian, Senior Typist, Over Seer / S.No Cadres Existing Pay Band Over Seer Grade II 4 Personal Clerk, Computer Operator, Pay Band 1 Assistant, Typist, Reader / Examiner / Proof Reader, Cashier, Head Bailiff, Sargent, Van driver / staff driver, Court Keeper, Junior Bailiff, Record Assistant 5 Jamedar/Gollah/Binder, Xerox Pay Band 1A Operator, Record Clerk, Lift Operator, Watch and Ward, Duffadar, Chobdars / Office Assistant / Sweepers / Scavengers / Gardner / Waterman I am further to state that taking into consideration the strength of the Hon'ble Judges and the volume of work in the High Court, it is observed that the pay structure of the High Court of Delhi appears to be more suitable and adaptable to the High Court of Madras. This is also because High Court, Madras is a chartered High Court and that both the Delhi and Chennai are Chief Metropolitan Cities. On the whole, Hon'ble Delhi High Court and Hon'ble Supreme Court of India have got similar pay structure in place. In addition, certain categories of posts, which exist in Madras High Court do not exist in other High Courts. Therefore, the proposal for enhanced pay, in respect of certain categories of posts is based on the similar pay band of other categories in the Hon'ble Delhi High Court and also taking into consideration, the hierarchy of categories and their pay scales in the Madras High Court Service.
I am further to state that a comparative analysis regarding the pay structures of various High Courts, was done and the pay structure proposed is based on the Delhi High Court pay structure.
In this connection, I am to state that the aforesaid matter was placed before the Hon'ble Staff Grievance Committee and the said Committee directed the Registry to address the Government for earliest consideration.
The aforesaid directions of the Hon'ble Staff Grievance Committee has been approved by the Hon'ble Chief Justice.” and ultimately recommended the proposal to the Government in respect of the pay structure, based on the Delhi High Court pay structure along with the financial implication involved therein, as an Annexure to this letter and requested necessary orders of the Government regarding revised pay structure as proposed by the High Court, may be obtained and communicated to this Court.
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14.To put it precisely, the Annexure to the letter of the 2 nd Respondent dated 10.02.2017 contains necessary details under the caption 'Proposed Scale of Pay to be Recommended to the Members of the Madras High Court Service' commencing from Sl.No.1- Registrar/Official Assignee (by Promotion) ending with Sl.No.34 Chobdars / Office Assistant/ Sweepers/ Scavengers/ Gardener/ Waterman.
15.Earlier this Court had sought information regarding the pay structure of Officers and Staff Members of High Court of Karnataka (prior to implementation of the 7th Pay Commission) through Letter dated 15.09.2016 and the Registrar General of the Karnataka High Court had enclosed a copy of the Karnataka Civil Services (Revised Pay) Rules, 2012 issued by the Government of Karnataka as well as amendment made to the High Court of Karnataka Service (Conditions of Service and Recruitment) (I Amendment) Rules, 2012 and 2013 which are applicable to the Officers and Staff Members (before the implementation of the 7th Pay Commission). Further, the High Court of Tripura, Agartala through Registrar (Judicial) had addressed a letter dated 29.09.2016 to the Registrar General of this Court relating to 'Pay Structure of the Officers and staff members of High Court of Tripura' wherein he had stated that the statement of present Scale of Pay of the Officers and staff members of the High Court of Tripura was sent herewith.
16.Further, the Registrar General (In-charge) of High Court of Sikkim, Gangtok had addressed a communication dated 27.09.2016 to the Registrar General of this Court enclosing the Scheduled-I appended to the High Court of Sikkim (Recruitment, Conditions of Service and Conduct) Rules, 1998 for reference. Also that, the Registrar General, High Court of Uttarakhand, Nainital had addressed communication to the Registrar General of Madras High Court, Chennai dated 27.09.2016 furnishing the pay structure of officers and staff members of the High Court of Uttarkhand. Likewise, the Registrar General, High Court of Jharkhand, Ranchi had addressed a communication dated 27.09.2016 to the 2nd Respondent/Registrar General, High Court, Chennai mentioning that the statement showing the existing pay scale and grade pay of the post available in the establishment of the Court as per 6th Pay Revision was sent herewith. Moreover, the Deputy Registrar (Administration) of High of Court of Jammu & Kashmir at Srinagar had addressed a communication to the Registrar General of this Court dated 06.10.2016 furnishing the details in regard to the pay structure of officers and staff members of the High Courts (prior to implementation of 7th Pay Commission).
17.Similarly, the 2nd Respondent/Registrar General, High Court, Madras had obtained the details on various dates regarding the Pay Structure of Officers and Staff Members of High Courts(prior to implementation of 7th Pay Commission) from the different High Courts of Himachal Pradesh, Allahabad, Chhattisgarh, Madhya Pradesh, Hyderabad, Patna, Punjab and http://www.judis.nic.in Haryana, Bombay, Orissa, Kerala, New Delhi, Guajarat, Rajasthan, Gauhati.
18.It is to be pointed out that subsequent to the Letter of the 2nd Respondent dated 10.02.2017, remainders were addressed to the concerned Official of the Home (Cts-V) Department, Government of Tamil Nadu, Chennai – 600 009, but they ended in vain.
19.The 1st Respondent has come out with a counter by inter alia stating that the Government after careful consideration of the Report of the Official Committee, 2017 had decided to accept its recommendations and issued orders in G.O.(Ms) No.303, Finance (Pay Cell) Department, dated 11.10.2017 for revision of pay and allowances.
20.Also, it is the stand of the 1st Respondent that the Officials of the High Court, Madras and Madurai Bench of Madras High Court are drawing the new scale of pay with notional effect from 01.01.2016 and monetary benefit with effect from 01.10.2017. Apart from the above, the issuance of the order of the High Court implementing the new pay structure to the employees of Madras High Court and its Madurai Bench is vide the 2nd Respondent/ Registrar General's letter dated 01.02.2018. Before the issuance of the order of the 2nd Respondent implementing new pay structure to the employees of Madras High Court and its Madurai Bench, the 2nd Respondent/Registrar General had sent a proposal on 10.02.2017 for enhancement of pay in respect of 34 categories of posts right from the cadre of Registrar to the cadre of Office Assistant.
21.In short, the plea of the 1st Respondent is that the proposal of the 2nd Respondent/High Court of Madras represented by its Registrar General is not feasible of compliance for the reasons assigned hereunder:
“(a) The Officers and Staff of the Madras High Court were receiving pay scales on par with the Officers and Staff of the Tamil Nadu Secretariat from Fifth Tamil Nadu Pay Commission onwards.
(b)If the present proposal of the Registrar General, High Court of Madras requesting to grant the pay structure of the Delhi High court to the employees of the Madras High Court is considered, the vertical and horizontal pay relativity of certain equivalent categories in other departments of the Government of Tamil Nadu will be affected.
(c)Moreover, the pay structures of Members http://www.judis.nic.in and Staff of Hon'ble Supreme Court is not under the purview of this State.
(d)It is further submitted that the pay scale of members and staff of High Court is always determined in each Pay Commission/panel based on the vertical and horizontal parity with State Government Staff, as there are many common cadres with judiciary and other department.
(e)Therefore any change in one department will have cascading effect on other department. Further, pay structure of one State cannot be compared with other States, especially with Government of India as the resource opportunities are quire different.
(f)Supreme Court and Delhi High Court, the structure is different, as expenses are borne by Central Government which has much more resources at its command.”
22.It is projected on the side of the 1st Respondent that the Government of Tamil Nadu had issued an Order in G.O.(Ms)No.220, Home (Cts.V) Department, dated 21.03.2018 for an enhancement of Grade Pay of the Registrars on par with Additional Secretaries to Government in the Tamil Nadu Secretariat. Also, the clear-cut stand of the 1st Respondent is that any kind of revision of pay for the Officers and Staff Members of the Hon'ble High Court of Madras and its Madurai Bench will also attract revision of pay for numerous categories of employees working in the Tamil Nadu Secretariat, which in turn will badly affect the administration and exchequer of the Government.
23.It is the categorical version of the 1st Respondent that the Revision of pay for Employees and Officials of the High Court of Madras and its Madurai Bench will open the flood gate in respect of similarly pay drawing employees working in the office of Official Assignee, High Court, Madras etc. Inasmuch as the orders were issued by the Government on 29.01.2019 wherein it is, among other things, mentioned that the proposal for enhancing the pay structure of the staff members of Madras High Court on par with the Hon'ble Supreme Court of India is not feasible of acceptance and accordingly, the same was not agreed to.
24.Be it noted that as per
Article 229 of the Constitution of India, the Hon'ble Chief Justice of High Court exercises control over its Staff and in terms of the ingredients of
Article 235 of the Constitution of India, the Hon'ble High Court exercises control over the Subordinate Courts.
25.It is an axiomatic principle in Law that whenever a Law is laid down by the Hon'ble Supreme Court, the same is binding on http://www.judis.nic.inExecutive or Judicial Authorities of our Country. It cannot be gainsaid that the Law declared by the Hon'ble Supreme Court is binding on all the Courts within the territory of India as per
Article 141 of the Constitution of India. Undoubtedly, all the authorities viz., Civil and Judicial shall act in aid of the Hon'ble Supreme Court as per
Article 14 of the Constitution of India.
26.Insofar as the
Article 14 of the Constitution is concerned, the same will apply in a case where the parties are likewise situated.
Article 14 of the Constitution of India does not provide for a negative Equality, but contrarily it provides for positive Equality, in the considered opinion of this Court.
Article 14 guarantees Equality before Law or the Equal Protection of Law within the territory of India.
27.To put it succinctly, the aim of
Article 14 of the Constitution of India is to ensure that invidious distinction or an arbitrary discrimination is not to be made by the State between a Citizen and a Citizen who answered the same description and the differences may obtain between them are of no relevance for the purpose of applying a particular Law reasonable qualification is permissible. No wonder,
Article 14 prohibits hostile discrimination. By virtue of
Article 14 of Constitution, the State shall not deny to any person Equality before Law or Equal Protection of Law within the territory of India.
28.It is to be pointed out that the State or Union is not to deprive an individual Equality before Law in matters concerning employment [inclusive of Remuneration]. Equal Pay is to depend upon the Nature of Work turned out and it cannot be judged by volume of work. Of course, there may be an qualitative difference in regard to Reliability and Responsibility. Functions may also be the same. However, the responsibilities make a difference more often than not the difference is only a matter of degree, as opined by this Court.
29.In fact, the principle 'Equal Pay for Equal Work' is quite applicable among equals. In a cocksure fashion, it cannot be applied to unequals. An affected person seeking to enforce the concept of 'Equal Pay for Equal Work' can be granted only after demonstrating before the Court to its subjective satisfaction that an invidious discrimination is practised by an Employer in two different scales for specifying two classes of Employees without there being any classification for the same.
30.The term 'Equal Protection' means the right to equal treatment in similar circumstances both in the privileges conferred and in the disabilities imposed, as per decision of the Hon'ble Supreme Court in Shri Kishan V. State of Rajasthan (1955) 2 SCR 53.
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31.Significantly, 'Equal Pay for Equal Work' is a Constitutional Goal. Further, in the decision of the Hon'ble Supreme Court in State of Madhya Pradesh V. Ramesh Chandra Bajpai, (2009) 13 SCC 635, it is observed that '.. It is observed that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of equality in the matter of pay scales. The Court has to consider the factors like the source, and mode of recruitment/appointment, qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc.'
32.It is to be pointed out that in the decision of the Hon'ble Supreme Court in Union of India V. S.B. Vohra, 2004 (2) SCC 150 at special page 173, wherein at paragraphs 52 & 53, it is observed as follows:
“52. The High Court, however, should not ordinarily issue a writ of or in the nature of mandamus and ought to refer the matter back to the Central / State Government with suitable directions pointing out the irrelevant factors which are required to be excluded in taking the decision and the relevant factors which are required to be considered therefor. The statutory duties should be allowed to be performed by the statutory authorities at the first instance. In the event, however, the Chief Justice of the High Court and the State are not ad idem, the matter should be discussed and an effort should be made to arrive at a consensus.
53. We are further of the opinion that only in exceptional cases the High Court may interfere on the judicial side, but ordinarily it would not do so. Even if an occasion arises for the High Court to interfere on its judicial side, the jurisdiction of the High Court should be exercised with care and circumspection.”
33.Also, this Court points out the decision of the Hon'ble Supreme Court in State of U.P. and another V. Johri Mal reported in AIR 2004 Supreme Court 3800 at special page 3810 wherein at paragraph 28(v), it is, inter alia, observed as follows:
http://www.judis.nic.in “(v) The courts cannot be called upon to undertake the government duties and functions. The court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a judge should not be invoked as a substitute for the judgment of the legislative bodies. (See Ira Munn V. State of Ellinois, 1876 (94) US (Supreme Reports) 113).”
34.Be that as it may, in the light of the stand taken by the st 1 Respondent in its counter that the representation made by the High Court Staff Association for Revision of Pay [forwarded by the 2nd Respondent to Government], on detailed examination, the Government had communicated in its letter dated 29.01.2019 to the 2nd Respondent that it is not feasible of compliance and that the Writ Petition has become an infructuous one, at this stage, this Court is of the earnest opinion that the subject matter in issue requires detail rumination/examination/consideration in the hands of this Court.
35.At this juncture, Mr.A.Ansar, Learned Government Advocate seeks time on behalf of the 1st Respondent stating that Mr.Vijay Narayan, Learned Advocate General is appearing in the matter. Hence, the Registry is directed to list the matter on 06.06.2019 for hearing. In the meanwhile, it is open to the 1st Respondent to file Additional Counter if any, if so desires/advised. Also that, the 2nd Respondent is directed to get ready for hearing by then.
-sd/-
22/04/2019 / TRUE COPY / Sub-Assistant Registrar ( Statistics / C.S. ) High Court, Madras - 600 104.
TO 1 THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME (CTS.V) DEPARTMENT, SECRETARIAT, CHENNAI.
2 THE REGISTRAR GENERAL, HIGH COURT, MADRAS 3 THE SECTION OFFICER, LEGAL CELL, HIGH COURT, CHENNAI.
4 THE SECTION OFFICER, WRIT SECTION, http://www.judis.nic.in HIGH COURT, CHENNAI.
C.C. to M/S.J.NAGARAJAN Advocate on payment of necessary charges C.C. to M/S.DURAI EASWAR Advocate on payment of necessary charges The Government Advocate, High Court, Chennai.
Order in WP.22730/2018 Date :22/04/2019
From 26.2.2001 the Registry is issuing certified copies of the Interim Orders in this format RRI 10/01/2019 KP(31/01/2019) (IT) KP(01/02/2019) KP(19/02/2019) KP(24/04/2019) (IT) http://www.judis.nic.in