IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.09.2017 CORAM :
THE HON’BLE MR. JUSTICE M.V.MURALIDARAN Writ Petition No.27784 of 2010 Tamil Nadu Physical Education Teachers – Physical Directors Association, Regd.No.69/2008 (35/98) Rep. by President S.Sankara Perumal No.11 Sivaraman Street, Triplicane, Chennai – 600 005. .. Petitioner Vs.
1. State of Tamil Nadu Rep. by its Secretary, Education Department, Fort St. George, Chennai – 600 009.
2. The Director of School Education, College Road, Chennai – 600 006. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India seeking issuance of a writ of Mandamus to direct the first respondent to consider and pass orders on the petitioner appeal petition dated 26.8.2010 on merit sanctioning salary to the graduate physical education teachers handling classes between VI to VIII in High and Higher Secondary Schools at par with the salary being paid to the graduate subject teachers handling standard VI to VIII in High and Higher Secondary School as prayed in the appeal petition before 1st Respondent dated 26.08.2010 of the Petitioner within a reasonable time.
For Petitioner : Mr.C.Johnson For Respondents : Mr.A.Rajaperumal Addl. Government Pleader ORDER The petitioner has filed this writ petition seeking issuance of a writ of mandamus to direct the first respondent to consider and pass orders on the petitioner's appeal petition dated 26.8.2010 on merits sanctioning salary to the graduate physical education teachers handling classes between VI to VIII in High and Higher Secondary Schools at par with the salary being paid to the graduate subject teachers handling standard VI to VIII in High and Higher Secondary School as prayed in the appeal petition before 1st Respondent dated 26.08.2010 of the Petitioner within a reasonable time.
2. The facts in a nutshell are as under: The petitioner is a registered association consisting of Physical Education Teachers and Physical Directors in the Tamil Nadu. It is plea of the petitioner association that the existing salary being paid to his members is very much lesser than that of the scale of pay being paid to the Graduate Teachers handling subjects in the High and Higher Secondary Schools for Standards VI to X, though the members possess Degrees and Master Degrees like that of the other Graduate and Post Graduate Teachers, which in effect tantamounts to discrimination.
3. It is averred that in the neighbouring States, the Physicial Education Teachers are drawing salary on a part with other Graduate and Post Graduate Teachers. It is stated that the qualifications for Physicial Education Teachers are prescribed by the National Council for Teachers' Education and though the qualification required is accepted by the State of Tamil Nadu, qua payment of salary, there is discrimination between the members of the petitioner Association and other Graduate and Post Graduate Teachers.
4. Putting forth their grievance in the aforesaid lines, the petitioner association made a series of representation to the respondents on 12.4.2008, 26.2.2009 and 14.7.2009. As the said representations did not evoke any response, the petitioner association filed W.P.No.23216 of 2009 and the said writ petition was disposed of by this Court on 13.11.2009 directing the second respondent to consider the representations of the petitioner association dated 12.4.2008, 26.2.2009 and 14.7.2009 and pass orders within 12 weeks therefrom.
5. It is stated that pursuant to the above said order, the second respondent vide proceedings dated 10.3.2010 rejected the representation of the petitioner association on the ground that the claim of the petitioner relates to a policy decision of the Government and, therefore, the second respondent cannot fix equal salary to the members of the petitioner Association on a par with other Graduate and Post Graduate Teachers.
6. The petitioner association appealed against the said order to the first respondent on 26.8.2010 claiming that similarly situated persons should be treated alike. However, as the first respondent, who is the competent authority to deal with government policy decisions, did not pay heed to the said representation, the petitioner association has filed this writ petition for the relief stated supra.
7. It is the contention of the learned counsel appearing on behalf of the petitioner association that when an appeal is filed to the competent authority, to wit, the first respondent, it is incumbent upon him to consider the same and pass appropriate orders, more so, when it is the specific case of the petitioner association that its members are not being treated on a par with other Graduate and Post Graduate Teachers qua granting of salary, though for qualification purposes, equal qualification is prescribed and the said attitude of the first respondent reeks of discrimination and is violative of Articles 14, 16, 19 and 21 of the Constitution of India.
8. Per contra, the learned Additional Government Pleader appearing on behalf of the respondents, while reiterating the stand of the second respondent that the issue involved pertains to a policy decision of the Government, assures this Court that the appeal of the petitioner association will be considered on merits and disposed of at the earliest.
9. I heard Mr.C.Johnson, learned counsel for the petitioner and Mr.A.Rajaperumal, learned Additional Government Pleader for the respondents and perused the documents available on record.
10. At the outset, it is to be noted that the members of the petitioner association are holding the qualification of Degrees and Master Degrees like that of the other Graduate and Post Graduate Teachers. It is their specific case that qua qualification the authorities are adhering to the prescription made by the National Council for Teachers' Education, however anent payment of salary there is a difference between the salary paid to Graduate and Post Graduate Teachers teaching other subjects and the members of the petitioner association.
11. Equal pay for equal work is a fundamental right. But, equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same, but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right. [See: Federation of All India Customs and Central Excise Stenographers v. Union of India, reported in (1988) 3 SCC 91].
12. The doctrine of equal pay for equal work would apply on the promise of similar work and it would not be open to the State to discriminate one class from the other in paying salary. Before granting pay parity, the powers to be have to satisfy themselves qua the nature and functions and the work of two class of teachers. The said doctrine cannot be applied without analyzing the duties and functions of the two class of teachers. It is not for this Court to analyze the nature of duties of the two class of teachers. Moreover, while interfering with the policy decisions of the Government, it is trite, that the Courts should be slow.
13. In such view of the matter, without going in to the merits of the claim of the petitioner association, this Court is inclined to pass the following order:
i. The first respondent is directed to consider the appeal filed by the petitioner association dated 26.8.2010 and pass appropriate orders, on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order.
ii. It is made clear that before passing such order, the first respondent shall give an opportunity of hearing to the Chairman of the petitioner Association, or any nominated office bearer/person of the petitioenr Association, to enable them to put forth their grievances – orally as well as by in the form of documents, to substantiate their plea that in other States and Union Territories equal pay for equal work is being granted as claimed by them.
This writ petition is allowed in the above terms. No costs.
20.09.2017 vs Note:Issue order copy on 03.01.2019 Index : Yes To
1. The Secretary, State of Tamil Nadu, Education Department, Fort St. George, Chennai – 600 009.
2. The Director of School Education, College Road, Chennai – 600 006.
M.V.MURALIDARAN,J.
vs W.P.No.27784 of 2010 20.09.2017