AI Structured Summary
Not yet generated for this judgment
Judgment
Nainar Sundaram, J.—The writ appeal is by the respondent in W.P. 5160 of 1982 [reported in P. Munisamy Vs. State of Tamilnadu, . The
respondent herein was the petitioner in the writ petition. For convenience sake, we shall refer to the parties as they stood arrayed in the writ
petition. The principles having been well settled by the pronouncement of the highest court in the land and the same having been followed by
Ramanujam J, who disposed of the writ petition, allowing the same, we do not think that we should strain much over the legal position, except to
set out the factual features, which do justify the application of the said principles to the said facts. The petitioner is working as an Amin in the
District Court, Madurai, and he is also the President of the Tamil Nadu Amin''s Association. He approached this Court under Art. 226 of the
Constitution of India with the following prayer :-
For the reasons stated in the accompanying affidavit, it is prayed that this Honourable Court may be pleased to issue a writ or order or direction
and in particular issue a writ in the nature of writ of certiorarified mandamus or any other appropriate writ and calling for the records relating to the
Tamil Nadu the Revised Scales of Pay Rules, 1978 and quash the same so far as it relates to the scale of pay relating to Amins as entered in item
No. 39 at page 136 under the caption ''Judicial department'' other than High Court, and directing the respondents herein to refix the petitioner in
the scale of pay applicable to Senior Bailiffs (i.e. 325-10-445-15-550 with the Selection Grade at 400-15-490-20-650-25-700) as shown in item
No. 38 at page 136 is under the caption ''Judicial department other than High Court'' with effect from 1st April, 1978, the date of the
commencement of the Tamil Nadu Revised Scales of Pay Rules, 1978 and thus render justice.
The petitioner would allege that employees like him working in the mofussil Courts are doing identical and equal work as employees bearing the
designation of Senior Bailiffs in the Civil Courts in the city of Madras, and that despite the fact that these two categories are discharging identical
work, yet, the time-scale of pay applicable to these categories has been fixed differently, bringing in unwarranted discrimination. The category of
persons to which the petitioner belongs is being paid lesser salary for the very same work which persons known as Senior Bailiffs in the civil
Courts in the city of Madras do discharge and the latter category is being paid higher salary. Reliance was placed on Art. 39(d) of the Constitution
of India, for pressing forth the principle that there should be equal pay for equal work.
Certain factual features remain above ambiguity and controversy. They are as follows : The category of employees to which the petitioner
belongs carry out duties in the mofussil, identical to the duties of the Senior Bailiffs in the civil Courts in the city of Madras. They perform and
discharge similar functions, powers, duties and responsibilities. In G.O.Ms. No. 2269 Home department, dated 8th September, 1979, it is
recognised that the Amins are superior in category when compared with the Junior Bailiffs and they are doing the work of a Senior Bailiff.
Certainly, there is equation of duties as per the features taken note of by State itself. The Senior Bailiffs in the civil Courts in the city of Madras and
Amins in the mofussil are working in one and the same department, though they are performing the duties in different spheres. The Senior Bailiffs
perform the duties in the civil Courts in the city of Madras and the Amins discharge their duties in the mofussil Courts. Before the learned single
Judge, there was an omission to file a counter affidavit by both the respondents. However, the Government Advocate obtained instructions from
the second respondent and made submissions. Those submissions indicated that there was a recommendation by the second respondent on the
representations made by the Tamil Nadu Amins Association that the work done by the Amins in the mofussil and the Senior Bailiffs in the city of
Madras are substantially same and identical and there is a justification for the redesignation of Amins as Senior Bailiffs. With regard to the revision
of scales of pay of Amins, the second respondent seemed to have recommended for fixing the same scale of pay as applicable to the Senior
Bailiffs, to Amins also. A counter affidavit has been now filed before us at the appellate stage, but that does not in any way controvert and
obliterate the crucial factual features. In the counter affidavit in para 7 it is admitted that the Amins and Senior Bailiffs have same responsibilities.
Yet, it is averred that the work of the Senior Bailiffs in the city is more arduous than that in the mofussil where the Amins work and the different in
the volume and quality of work turned out in the city and mofussil will have to be suitably reflected in the pay differentials between these two
categories. In para 13, it is stated that the job responsibilities of the posts of Amins and Senior Bailiffs may be the same, but the volume and quality
of work of Amins in the mofussil and the Senior Bailiffs in the city differ. Apart from a bald statement, we do not get any statistical explanation with
regard to this alleged difference in the volume and quality of work between that of the Amins in the mofussil and the Senior Bailiffs in the city. Even
otherwise, this stand is inethical because this variance in the volume and quality of work of these employees in the judical department could be a
temporary and a vacillating feature and could be relatable to the work load of courts to which they got attached. Such a variance, if any, can never
be stated to be static and standard so as to strike a difference in their scale of pay. So long as they are bound to discharge the same responsibilities
and duties, we do not find any justification to exclude the application of the rule ''equal pay for equal work''. In our view, the features which
weighed with and are taken note of by the State in G.O.Ms. No. 2269 Home Department dated 8th September, 1979, which has been rightly
relied on by the learned single Judge for spelling out the position that there is equation of duties and workload must govern, and besides, the
present stand in the counter affidavit appears to be purely an after thought. Neither in the grounds of writ appeal nor in the counter affidavit now
filed, the features recognised and taken note of in the said Government Order with regard to equation of responsibilities have been resiled as not in
any way reflecting the correct factual position. We shall presently refer to the Government Order in detail.
It is now voiced before us on behalf of the first respondent that before the Tamil Nadu Third Pay Commission employees of the category of the
petitioner only made a specific request for the grant of pay parity with the Copyists and the Tamil Nadu Third Pay Commission examined the pros
and cons of this request and found that the work norm for the Copyists has been made stiff while giving them a better scale of pay than that of the
Amins and hence the petitioner now cannot voice forth a fresh grievance that parity must be established between Senior Bailiffs in the City of
Madras on the question of scale of pay. This is, in our view, a very puerile and a hollow answer to the grievance expressed by the petitioner.
What actually transpired, seems to be this, Prior to the First Pay Commission, the scale of pay of Amins was Rs. 25-2-33-1-45. The Copyists
had no time scale of pay and they were paid a fixed pay of Rs. 30 per month. The First Pay Commission recommended equal pay to the Copyists
and Amins, viz, Rs. 70-2-100. Accordingly, the Government issued orders revising the scale of pay of Amins and Copyists as Rs. 70-2-100. This
Court from its administrative side recommended to the Second Pay Commission for revision of scale of pay of Amins as Rs. 90-4-110-3-140 and
for the Copyists as 90-3-120 + additional remuneration to be decided. But the second Pay Commission recommended a scale of pay of Rs. 150-
4-170-5-525 to Amins and Copyists and the above scale was lower than the scale of Junior Assistants, viz, Rs. 200-5-250-10-300, which was
subsequently revised as Rs. 210-5-10-325 by One Man Commission. The Government have appected the above recommendation of the Pay of
Commission and revised the scales of pay of Amins and Copyists as Rs. 150-4-170-325, by merging dearness allowance with pay. Pursuant to
the representations made by the Copyists the Government in G.O.Ms. No. 762 Home department, dated 14th March, 1972, revised the scale of
pay of copyists as Rs. 200-5-250-10-300 which was the scale of pay of Junior Assistants prior to revisions by one Man Commission.
This Court from its administrative side recommended to the Third Pay Commission in 1977, for revision of scale of pay of the Copyists,
Readers and Examiners on par with Junior Assistants to be revised and that of the Amins on par with Junior Assistants, copyists and readers and
examiners pointing out that the duties and responsibilities of Amins are onerous and the Amins in the mofussil Courts and the Senior Bailiffs in the
City, more or less do the same duties in the matter of executions of Court orders. But on the recommendations of the Third Pay Commission, the
Government in G.O.Ms. No. 1050 Finance, dated 5th October, 1978 issued orders revising the scale of pay of junior assistants, copyists, readers
and examiners and the Amins as follows :-
Junior Assistants Rs. 350-10-430-15-600
Copyists, readers
and examiners Rs. 325-10-445-15-550
Amins Rs. 280-5-320-10-450
The Amins'' Association, Madurai district in the year 1979, made representation for the revision of scale of pay of Amins on par with copyists. The
Tamil Nadu Judicial Ministerial Officers'' Association made representation in the year 1981 for the revision of scale of Amins as Rs. 325-10-445-
15-550 with selection grade scale of pay of Rs. 400-15-490-20-650-25-700 which is the scale of pay and selection grade pay of copyists. The
Tamil Nadu Amins'' Association has also made representation to this Court on the administrative side for the revision of scale of pay of Amins as
applicable to Senior Bailiffs in the Court of Small Causes, Madras i.e., Rs. 325-10-445-15-550. This Court from its administrative side after
careful examination recommended the above requests of the Tamil Nadu Judicial Ministerial Officers Association and the Tamil Nadu Amins''
Association for revision of the scale of pay Amins as Rs. 325-10-445-15-550 on par with copyists and it is the scale of pay of senior bailiffs in the
Court of Small Causes, Madras, based on the recommendations of the Tamil Nadu III Pay Commission. The result is the scale of pay of Senior
Bailiffs is the same as the scale of pay of copyists. Hence, if employees of the category of the petitioner asked for the scale of pay, it cannot be
stated that they have asked for something different and new. The anomaly and inequality subsists between the Amins in the mofussil and Senior
Bailiffs in the city of Madras, and hence there is every warrant for rectifying the same. In any event, the recommendations of the Pay Commission
are not binding on the State and it is duty of the State to fix scales of pay irrespective of the recommendation of the Pay Commission, when once it
is found that identical duties and responsibilities prevail between the two categories of posts irrespective of the fact that the employees discharge
the duties in different spheres. Such a view has already been expressed by another bench of this Court consisting of V. Ramaswami and Sathiadev,
JJ. in a recent pronouncement in D. Rajagopalan Vs. The Union of India, The Salt Commissioner, Rajasthan and The Deputy Salt Commissioner,
Madras,
It is further pointed out in the counter affidavit of the first respondent that the post of Amins in the mofussil is filled not only by direct recruitment,
possessing the minimum general educational qualification of S.S.L.C. but also by transfer from the category of Process servers, whose qualification
is less than the minimum general educational qualification. This could not also be a convincing answer for the principle that here should be equal pay
for equal work. When the employees fill up similar categories discharging the same responsibilities and duties, it will not be proper to discriminate
as between them on the question of equal pay for equal work on those grounds. It is not claimed that the Amins who have come to the post from
category of process servers are being paid less than those directly recruited, in the same category. We have also verified from the administrative
side of this Court that there is not difference in the scale of pay between the promotees and transferees from among the process servers who have
not completed S.S.L.C. and who are functioning as Amins and the directly recruited Amins who have passed S.S.L.C.
It will be pertinent at this juncture to refer to the prouncement of the Supreme Court in Randhir Singh Vs. Union of India (UOI) and Others, In
that case, the petitioner was a driver-constable in the Delhi Police Force under the Delhi Administration and he demanded that his scale of pay
should at least be the same as the scale of pay of other drivers in service of the Delhi administration. The case of the petitioner was that he
discharged the same duties as the rest of the drivers in other offices. It was found that the counter affidavit filed did not explain how the case of the
drivers in the police force is different from that of the drivers in other departments and what special factors weighed in fixing lower scale of pay for
them. The only answer given was that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the
principle of ''equal pay for equal work'' is not a principle which the Courts should recognise and act upon. The Supreme Court characterised this
answer as unsound and declined to accept the same. Even at the outset, the role of Courts to uphold the Constitutional goal of ''equal pay for equal
work'' adumbrated in Art. 39(d) of the Constitution of India was stressed in the following terms :
''Equal pay for equal work'' is not a mere demegogic slogan. It is a constitutional goal capable of attainment through constitutional rights. So the
petitioner claims; so the petitioner asserts. Art. 39(d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of ''equal pay
for equal work for both men and women''. Arts. 14 and 16 guarantee respectively the fundamental rights to equality before the law and equality of
opportunity in the matter of public employment and Art. 32 provides the remedy for the enforcement of the fundamental rights. So the petitioner
has invoked the jurisdiction of this Court under Art. 32 and has asked us to direct the respondents to give him his due, the same as they have given
others like him. True, he is the merest microbe in the mighty organism of the State, a little clog in a giant wheel. But, the glory of our Constitution is
that it enables him to directly approach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he has
done so. Hitherto the equality clauses of the Constitution as other Articles of the Constitution, guaranteeing fundamental and other rights, were
most often invoked by the privileged classes for their protection and advancement and for a ''fair and satisfactory'' distribution of the buttered
loaves amongst themselves. Now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the
forward-looking posture of this Court, the under-privileged also are clamouring for their rights and are seeking the intervention of the Court with
touching faith and confidence in the Court. The Judges of the Court have a duty to redeem their constitutional oath and do justice no less to the
pavement dweller than to the guest of the five star hotel.
How the principle ''equal pay for equal work'' is deducible from a proper construction of Arts. 14 and 16 of the Constitution of India in the light of
the preamble to Art. 39(d) was stressed in paragraph 8 Randhir Singh Vs. Union of India (UOI) and Others, of the judgment and it needs
extraction as a whole :
It is true that the principle of ''equal pay for equal work'' is not expressly declared by out Constitution to be a fundamental right. But it certainly is a
constitutional goal. Art. 39(d) of the Constitution proclaims ''equal pay for equal work for both men and women'' as a directive principle of State
policy. ''Equal pay for equal work for both men and women'' means equal pay for equal work for every one and as between the sexes. Directive
principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation.
Art. 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares
that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These
equality clauses of the Constitution must mean something to every one. To the vast majority of the people the equality clauses of the Constitution
would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if
equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber barons and smuggler kings or for
dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered
discretion on the executive, whether the take over of the empire of industrial tycoons is arbitrary or unconstitutional and other questions of like
nature, leave the millions of people of this country untouched questions concerning wages and the like, mundane they may be, are yet matters of
vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the
Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the
word ""Socialist"" must mean something. Even if it does not mean ''to each according to his need'', it must at least mean ''equal pay for equal work''.
The principle of ''equal pay for equal work'' is expressly recognised by all socialist systems of law, e.g. S. 59 of the Hungarian Labour Code, para
2 of S. 111 of the Czechoslovak Code, S. 67 of the Bulgarian Code, S. 40 of the Code of the German Democratic Republic para 2 of S. 33 of
the Rumanian Code. Indeed this principle has been incorporated in several Western Labour Codes too. Under provisions in S. 31 (g. No. 2d) of
Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective
bargaining agreements. In accordance with S. 3 of Grundgesets of the German Federal Republic and clause 7, S. 123 of the Maxican Constitution,
the principle is given universal significance (Vide : International Labour Law by 1st wan Swaszy page 265). International Labour Organisation
recognises the principle of ''equal remuneration for work of equal value'' as constituting one of the means of achieving the importance of conditions
''involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world
are imperilled.'' Construing Arts. 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle ''equal pay for equal
work'' is deducible from those Articles and may be properly applied to case of unequal scales of pay based on no classification or irrational
classification though those drawing the different scales of pay do identical work under the same employer.
In that case, the Supreme Court allowed the writ petition and directed the respondents to fix the scale of the driver-constable of the Delhi Police
Force at least on par with that of the drivers of the railway protection force effective from 1st January, 1973, the date from which the
recommendations of the Pay Commission were given effect.
On behalf of the respondents, the pronouncement of the Supreme Court in Kishori Mohanlal Bakshi Vs. Union of India, was relied on to state
that the abstract doctrine of equal pay for equal work has nothing to do with Art. 14. The facts of that case were different. The contention raised
was that there was a discrimination between Class I and Class II officers in as much as though they do the same kind of work their pay scales are
different. The Supreme Court pointed out that this contention could not be accepted because if so accepted there could be no incremental sales of
pay fixed dependent on the duration of an officer''s service. In the subsequent pronouncement in Randhir Singh Vs. Union of India (UOI) and
Others, , the Supreme Court distinguished the earlier case in the following terms at para 7 at p. 347 :
We shall presently point out how the principle ""equal pay for equal work"" is not an abstract doctrine but one of substance. Kishori Mohanlal
Bakshi v. Union of India, is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for
different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a
particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade,
which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two
grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Art. 14 sought to be
applied to them.
Hence, the reliance on behalf of the respondents on this pronouncement, in our view, is of no avail.
Coming to G.O. No. Ms. 2269, Home Department, dated 9th September, 1979, it related to the prescription of the minimum general education
qualification for the post of Amin. In September 1976, the President, Tamil Nadu Non-Gazetted Government Officers'' Union requested the staff
side member of the Tamil Nadu Civil Services Joint Council to categorically fix the qualification prescribed for the post of Amin as minimum
general educational qualification. How this request was dealt with and what are the factual data taken note of and considered by the Government
are clearly brought out in the Government Order itself and hence we feel obliged to extract the same :
GOVERNMENT OF TAMIL NADU
Abstract
Public service-Judicial department-Post of Amin in class V of Tamil
Nadu Judicial Ministerial service - Minimum general educational
qualification prescribed.
Home (Cts. VIII) Department
G.O.Ms. No. 2269 dated : 8.9.1979
Read :
G.O.Ms. No. 2742 Public (Ser), dated : 30.9.53.
G.O.Ms. No. 1375 Home dt. : 6.4.72 and
G.O.Ms. No. 1600 Home dt. : 16.6.71.
Read again.
From the High Court letters Roc. No. 538/77/C-1 dated 28.2.77 and Roc. NK. 10208/77/C-1, dated 22.2.78.
From the Ex-offico Secretary, Tamil Nadu Civil Service Joint Council letter No. 27972/78-7 dt. : 10.7.78.
From the Deputy Registrar, High Court, letter Roc. No. 8468/78-C-1, dated 4.11.78.
Order : 1. According to item 2(c) in the Table under rule 19 of the Special Rules for the Tamil Nadu Judicial Ministerial Service, a person to be
appointed as Amin in the Judicial department should have completed S.S.L.C. In September 1976, the President, Tamil Nadu N.G.Os. Union
requested the Civil Services Joint Council to categorically fix the qualification prescribed for the post of Amin as minimum general education
qualification. The staff side member of the Tamil Nadu Civil Services Joint Council stated that the educational qualification prescribed for Junior
Bailiff, who is doing the work of the Process server remains unaltered as minimum general educational qualification while qualification of Amin, who
is doing the work of senior bailiff, has been downgraded as completed S.S.L.C. The Amins are superior in category. They perform arduous duties
requiring the possession of legal knowledge and they have to face individual risk. In these days, the qualification prescribed for various posts are
being upgraded. There is no valid reason to downgraded the qualification for the post of Amin. He has therefore requested that the minimum
general educational qualification may be prescribed to the post of Amin.
The Registrar, High Court, has stated that if the minimum general educational qualification is prescribed to the post of Amin, by direct
recruitment, and if such a qualification is not insisted upon for promotion of a process peon as an Amin, then an Amin who is recruited directly will
be required to have the higher qualification, while the peon, etc. who are promoted would have the qualification, of merely an ability to read and
write the official language and as such there would be a wide disparity. There cannot be two different qualifications of wide disparity for
appointment to post of Amin, one by direct recruitment, another by recruitment by transfer and yet another for appointment by promotion from
among the attenders. The High Court, is, therefore, of the view tht the request of the Association cannot be acceded to. The High Court has,
however pointed out that if any higher qualification is fixed, that would naturally apply to all Amins whatever be the method of recruitment, direct,
transfer or promotion.
The Government after carefully considering the views of the High Court and the staff side member of the Tamil Nadu Civil Services Joint
Council of the above subject, proposed to accept the request of the Association for prescribing the minimum general educational qualification for
the post of Amin. Accordingly, the views of the Government were communicated to the Tamil Nadu Civil Services Joint Council. In its meeting
held on 24th June, 1978, the Joint Council has decided that the qualification of ''pass in S.S.L.C.'' may be prescribed for direct recruitment of
Amin and that 50 per cent. of the vacancies may be filled up by transfer from among the qualified persons, who have studied S.S.L.C. available in
the lower category of process servers. On the above decision, the High Court has stated that in view of the fact that the Government have chosen
to accept the request to the Association, the High Court has no further remarks to offer in the matter.
The Government, after careful consideration, accept the decision of the T.N.C.S.J.C. taken at its meeting held on 24th June, 1978. They
accordingly direct that the qualification for the post of Amin in Class V of the Tamil Nadu Judicial Ministerial service, by direct recruitment, shall be
''pass in S.S.L.C.'' and that 50 per cent. of vacancies may be filled up by transfer from among the qualified persons, who have studied S.S.L.C.
available in the lower category of process servers.
The Registrar, High Court, is requested to send, in due course, necessary draft amendments to the Special Rules for the Tamil Nadu Judicial
Ministerial service for approval by the Government.
(By Order of the Governor)
(sd.) V. M. Vennimalai Pandian
Deputy Secretary to Government
The staff side Member of the Tamil Nadu Civil Services Joint Council stated that the Amin is doing the work of the Senior bailiff; the Amins are
superior in category; they perform arduous duty requiring the possession of legal knowledge and they have to face individual risk. The Government
have considered these recommendations of the Staff side member of the Tamil Nadu Civil Services Joint Council and they have not been rejected
as factually incorrect. That is enough material to spell out equation of responsibilities and duties. This also exposes the untenability of the present
stand of the first respondent that the Amins are not doing arduous duties. We are not concerned with regard to the fixation of minimum general
educational qualification for the post of Amins inter se different channels of appointment, for the purposes of this case. The facts revealed being
what they are and the principles having been settled by the Highest Court in the land, we do not think that we can skip over our Constitutional duty
to enforce the rule ''equal pay for work'' in the instant case.
On behalf of the first respondent, it is expressed that the financial commitment in this behalf will bring in a heavy strain on the Exchequer of the
State, if the fixation of the scale of pay is given effect to from 1st April, 1978. That was the relevant date when the Tamil Nadu Revised scales of
pay Rules 1978 came into force. On the ground of financial strain to be felt by the State, we do not think that we should absolve ourselves from
our Constitutional obligation, which has also been recognised by the highest Court in the land by its pronouncement referred to above. The learned
single Judge, in our view, did the right thing in directing the respondents to fix the scale of pay for the category of Amins to which the petitioner
belongs on par with the senior Bailiffs working in the city of Madras to be effective from the date when the Tamil Nadu Revised scales of pay
Rules 1978 came into force. Hence we dismiss the writ appeal; but we make no order as to costs.