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Judgment
K. Chandru, J.—Heard the arguments of the learned Counsel for the parties and have perused the records.
2.1. W.P. No. 7787 of 2002 is filed by 18 persons seeking to challenge the order dated 15.12.2001 in B.P. Ms. No. 230 TWAD Estt. (Per.)
Wing passed by the respondent Tamil Nadu Water Supply and Drainage Board [for short, ''TWAD Board'']. Under the said order, the pay given
to the 18 persons was sought to be refixed and also the excess amount was to be recovered.
2.2. The very same petitioners, through their association, viz., TWAD Board Secretariat Staff Association earlier filed W.P. No. 10526 of 1998
challenging the proceedings in B.P. Ms. No. 233 dated 29.5.1998 more particularly, paragraph 7(iii) of the order by which the Managing Director
was authorised to implement any revision of the orders of the State Government in G.O. Ms. NO. 162 Finance Department dated 13.4.1998 and
to rectify any defect / omissions as ordered by the Government from time to time.
2.3. W.P. No. 16385 of 1998 is filed by another Association, by name, TWAD Board Administrative Staff Association, challenging the
proceedings in B.P. Ms. No. 331 dated 08.10.1998 and also to treat the Assistant Section Officers (ASOs)/Confidential Steno - Typists (CSTs)
working in the Board Secretariat on par with the Assistants/Steno - Typists working in the subordinate offices in the matter of implementation of
VIth Pay Commission.
2.4. In W.P. No. 17138 of 1998, yet another Association, by name, TWAD Board Accounts Officials Association sought for a similar prayer as
that of W.P. No. 16385 of 1998 and to treat the audit assistants on par with the Assistants, Section Officers and Confidential Steno typists to pay
them salary to the Assistant, Section Officers, Confidential Steno Typists.
3.1. Pending the writ petitions, an interim order was passed by this Court on 06.01.1999. In paragraph 17, the following order was passed:
Without prejudice to the contentions of the respective parties, 87 employees listed by TWAD Board will get revised pay of Rs. 5,500 - 9,000
corresponding to Rs. 1,640 - 2,900 with effect from 1.1.1996. This is because of the stay granted in W.P. No. 16618 of 1994. This will be
subject to specific undertaking from the said 87 employees to repay the amount received, if any, in lumpsum, if it is found that they are ineligible at
a later date. The others will get scale of pay corresponding to Rs. 1,400 - 2,600 as the case may be.
3.2. Pursuant to the interim order, the employees have given an indemnity bond to the TWAD Board undertaking as follows:
I hereby agree to repay any amount received from TWAD Board towards the annual increment sanctioned to me for the period from 2002 to
2006 and also for subsequent years which is found inadmissible to me at a later date, without prejudice to the final decision to be taken by the
TWAD Board based on the final disposal of the Court case in the above matter.
In view of the interconnectivity between all the writ petitions, they were heard together an a common order is being passed. It is submitted by all
the counsels that the disposal in W.P. No. 7787 of 2002 will give a quietus to all the writ petitions. Hence, that writ petition is taken up first.
5.1. It is stated by Mr. P.R. Raman, learned Counsel for the petitioners submitted that out of the 18 writ petitioners, only respondents 2 to 4, 12,
13 and 18 are still in service and others as they had reached the age of superannuation, are no longer in service. The learned Counsel submitted
that when the Vth Pay Commission was introduced by the State Government , the same was adopted by the TWAD Board by issuing B.P. No.
337 dated 06.10.1989. Paragraph 15 of the said order gave the Managing Director the power to implement the orders of the Government and
also to rectify any defect or omission if ordered by the Government from time to time. By resorting to the said power, the Managing Director
passed an order dated 26.11.1991 revising the scale of pay of the Assistant Section Officers / Confidential Stenographers from 1400 - 2600 to
that 1640 - 2900 w.e.f. 01.6.1988. By this process, this group of staff were brought on par with the staff holding similar posts in Government
Secretariat at Fort St. George.
5.2. This action of the Managing Director came to be objected to by the Audit Department on 23.11.1992. It was stated that the staff of the
TWAD Board working in its Secretariat cannot be compared with that of the staff in the Government Secretariat. Since the TWAD Board had not
taken any policy decision to give them pay parity, the respondent Board passed B.P. Ms. No. 177 dated 12.9.1994 and restored their original
pay scale and also ordered for recovery of the amounts paid in excess. While one section of the employees welcomed this move, the aggrieved
persons filed a writ petition being W.P. No. 5129 of 1995. In that writ petition, it was contended that they are eligible to get the revised scale and
in any event, since they were not heard while ordering restoration of their original scale of pay, the order was opposed to principles of natural
justice.
5.3. This Court accepted the said submission and set aside the order dated 12.9.1994 vide judgment dated 12.10.2000. It was directed in that
writ petition that two member of the Board of Directors will hear the representations made by the petitioners through their Association. Their
objections shall be taken into account by a Committee and final orders will be passed by the Board of Directors and till such time, the earlier order
will be kept in abeyance. Pursuant to the said direction, two of the Board of Directors went into the representation made by the petitioners through
their Association and gave a report dated 07.02.2001 to the Board.
5.4. In paragraph 11 of the said report, the Committee held that method of recruitment and qualification are the same for the Board Secretariat and
the unit offices and they were all recruited through Employment Exchange and the basic qualification of a Degree from a recognised university.
They had also stated that the employees of the Board Secretariat and the unit offices are liable to be transferred from one unit to other units. In the
Regulation 5 of the TWAD Board Service Regulations, 1972, no separate Secretariat service was created and in the Regulations, there is no post
of Section Officer, Assistant Section Officer and Confidential Steno - Typists. They have also brought to the notice of the TWAD Board that the
appointment made to the post of Assistant Section Officers and Confidential Stenographers are no longer being made and the existing employees
alone are continuing in the said post.
5.5. In that view of the matter, they recommended that while the distinction should be removed, but, however, some kind of pay protection may be
given. Therefore, they made the following recommendation as found in the report:
In view of this and as the Government stated that their present pay may be protected, the following two alternatives are submitted to the Board of
Directors for consideration:
Alternatives I:
Since the sanction of posts of Asst. Section Officers and Confidential Steno-Typist was stopped from 1987 onwards, these categories have now
become vanishing categories. In view of this and as the Government have directed that the present pay of the Asst. Section Officers and
Confidential Steno-Typist have to be protected, while reducing their scales of pay, the Board may consider to allow the Asst. Section Officers and
Confidential Steno-Typists to continue to draw the revised scale of pay of Rs. 1640 - 2900 by cancelling the orders issued in B.P. Ms. No.
177/dt. 12.9.94 and the approval of the Government obtained.
(OR)
Alternative II:
The orders issued in B.P. Ms. 177/ dt. 12.9.94 may be enforced however protecting the last pay drawn by the Asst. Section Officers and
Confidential Steno-Typist on the date of issue of these orders as directed by the Government in their letter (MS) No. 103/dt. 29.3.94 and an
amendment may be issued to the above B.P. to this effect.
5.6. When the matter was placed before the Full Board, it passed a resolution in B.P. No. 230 dated 15.12.2001. The Full Board decided to
enforce the orders in B.P. Ms. No. 177 dated 12.9.1994 but, however, to protect the last pay drawn by the ASOs and CSTs as directed by the
government in its earlier order dated 29.3.1994 w.e.f. the date of the order to be issued in that regard, it was resolved to allow the scale of pay as
directed in the Vth Pay Commission and for the ordinary grade, it was fixed as 1400 - 2600, for the Selection Grade, it was fixed as 1640 - 2900
and for the Special Grade 2000 - 3200. With this as the basis, it was allowed to give the equivalent VIth Pay Commission''s scales. It was also
decided to fix the last drawn pay in the lower scale and to treat the difference as a Personal Pay which was to be absorbed in subsequent
increments as provided in the Fundamental Rules and also to regulate the future increments in the lower scale. Finding that the said direction will
create a loss of 150 to 235 per month with additional Dearness Allowance, the petitioner''s Association made representation and since the same
was not considered, the present writ petition has been filed by the 18 affected individuals and an interim order as noted above was obtained.
5.7. Mr. P.R. Raman, learned Counsel submitted that granting the posts of ASOs and CSTs was originally approved by the Government. The
Managing Director was also authorised to revise the pay scales and, therefore, it is not open to them to revise the scales available to the existing
employees. He also submitted that the two member committee had given two options and it is not clear as to why the Board had not agreed to the
first option. He further submitted that these two cadres were vanishing tribe and hence, no recovery need to be made in their pay. Otherwise each
of the petitioner will lose substantial amounts.
Per contra, Mrs. Sudharshana Sundar, learned Counsel submitted that the only right of the petitioners projected earlier was that they were not
heard when the restoration of the original scale of pay took place. The two member committee had recommended the enforcement of earlier B.P.
With reference to the Alternative I, it required the approval of the Government and therefore, that option was not preferred. The second option
was undertaken by the Board with the least hardship to the petitioners. Further, having obtained the interim order on conditional basis, they should
not turn and refuse to pay the amounts paid to them in excess of their eligibility. The petitioners, if they are really interested in seeking a final relief
from this Court, they ought not to have sought for an interim order. When once they got a conditional order, they are bound to obey the same.
6.1. While Mrs. Narmada Sampath, learned Counsel supported the arguments of Mr. P.R. Raman, Mr. T.N. Rajagopalan and Mr. G.
Venkataraman supported the stand of the TWAD Board.
The petitioners have not made out a case for pay parity with that of the Government Secretariat. As they were working in the Board Secretariat,
they are eligible for the pay scale as made available to others. Their stand was negatived by the Board even earlier and no promotions were made
to the posts of ASOs and CSTs. Even their contention was negatived by the two member committee which was accepted by the Full Board. They
cannot contend contrary to the statutory Regulations framed by the Board. Even the pay parity given by the Managing Director was without
reference to the Board and no such policy decision can be taken except by the Full Board.
The question of pay parity or equation of post is a policy decision over which the Court has no pro-active role by recommending either a
particular scale or equation of posts with some other department. The Supreme Court in S.C. Chandra and Others Vs. State of Jharkhand and
Others, wherein M. Katju, J., in his concurring judgment, held that grant of pay scales is an executive or legislative function and not a judicial
function. The following passages found in paragraphs 24 to 28 and 33 to 35 may be usefully reproduced:
Para 24: The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s e.g. Dhirendra Chamoli v.
State of U.P. Surinder Singh v. Engineer-in-Chief, CPWD, Randhir Singh v. Union of India, etc. This was done by applying Articles 14 and 39(d)
of the Constitution. Thus, in Dhirendra Chamoli case this Court granted to the casual, daily-rated employees the same pay scale as regular
employees.
Para 25: It appears that subsequently it was realised that the application of the principle of equal pay for equal work was creating havoc. All over
India different groups were claiming parity in pay with other groups e.g. government employees of one State were claiming parity with government
employees of another State.
Para 26: Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational
qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for
equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
Para 27: Thus, in State of Haryana v. Tilak Raj it was held that the principle can only apply if there is complete and wholesale identity between the
two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and
wholesale identity e.g. a daily-rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale.
Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are
different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.
Para 28: In State of Haryana v. Charanjit Singh discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that
the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even
for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires
extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent
decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever
applied in recent decisions.
Para 33: It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may
have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court should exercise judicial restraint and
not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen.
Para 34: There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or
legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book The Spirit of Laws
still broadly holds the field in India today. Thus, in Asif Hameed v. State of J&K a three-Judge Bench of this Court observed (vide paras 17 to
19): (SCC pp. 373-74)
Before adverting to the controversy directly involved in these appeals we may have a fresh look at the inter se functioning of the three organs of
democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute
rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have
to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution
trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The
functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people''s
will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the
aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to
restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the
concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on
our own exercise of power is the self-imposed discipline of judicial restraint.
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles observed as under: (US pp. 119-
20)
All power is, in Madison''s phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It also must be on guard
against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.
Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of
prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it
require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one''s own
strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious
regard for limitations on its own power, and this precludes the Court''s giving effect to its own notions of what is wise or politic. That self-restraint
is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit in judgment on the wisdom of what
Congress and the Executive Branch do.
When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the
legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the
action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the
Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not
permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the
sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.
Para 34: In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of
separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal
pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for
examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay).
The said decision also came to be followed by the Supreme Court in the subsequent judgment in State of Punjab and Others Vs. Surinder Singh
and Another, .
Para 7: In the aforesaid decision one of us (Markandey Katju, J.) in his concurring judgment has held that granting pay scale is an executive or
legislative function, and not a judicial function. There is separation of powers under the Constitution between the three organs of the State, and the
judiciary should not encroah into the domain of the other organs. Montesquieus theory of separation of powers broadly applies in India too.
Therefore, in the light of the above, the contentions raised by Mr. P.R. Raman cannot be countenanced by this Court. Once the decision of the
Board impugned in the writ petition is upheld by this Court, the necessary consequences will follow. On the question of recovery, no sympathy can
be shown to the petitioners either on the ground that they were a vanishing tribe or that there will be a huge loss to them. This is especially so that
this Court in the earlier round of litigation, by judgment dated 12.10.2000, had only kept the order in B.P. No. 177 dated 12.9.1994 in abeyance
and had given them an opportunity of being heard. Since the petitioners themselves have got a conditional stay followed by their undertakings, this
Court is not inclined to grant any interim order by showing any undue indulgence in their favour.
In the light of the above, W.P. No. 7787 of 2002 and 10526 of 1998 will stand dismissed. In W.P. Nos. 16385 of 1998 and 17138 of 1998,
no orders are necessary as they were filed only as a counter blast to the other two writ petitions. However, there will be no order as to costs.