Madras High Court
P.Kamatchi vs The State Of Tamil Nadu
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. Nos.583/2015, etc. Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
04.12.2020 21.12.2020
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NOS. 583, 8300, 11214 & 29853 OF 2015
W.P. NOS. 1404, 8250 TO 8252 & 17352 of 2016
W.P. NO. 31496 OF 2018
AND
W.M.P. NOS.1179, 1180, 14831 & 14832 OF 2016
W.M.P. NOS. 36709, 36713 & 36763 OF 2018
W.P. NO. 583 OF 2015
1. P.Kamatchi
2. P.Jayaprakash
3. K.Narayanan
4. G.Alagarraj
5. V.Suresh Kumar
6. Paramasivam
7. P.Meenarani
8. R.Ananthi
9. Sivanesan
10. R.Maheswaran
11. K.Ramanathan
12. N.Rameshkumar
13. S.Panbukumar
14. M.Balchamy
15. A.Saminathan
16. C.Jeyaraj
17. V.Vaitheeswaran
18. M.Kannan
19. G.Parthipan
20. M.Amutha
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21. P.Mahesh
22. P.Sivakumar
23. R.Siva Subramanian
24. N.Sankaranarayanan
25. S.T.Shanmugasundaram
26. S.Radhakrishnan
27. A.Balakrishnan
28. V.Rasi .. Petitioners
- Vs -
1. The State of Tamil Nadu
rep. By Secretary to Government
Finance Department
Fort St. George, Chennai 600 0069.
2. The Principal Secretary - cum - Commissioner
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
3. The Director
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
4. The Assistant Director
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
5. The Joint Director (Admin)
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
6. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Kancheepuram, Kancheepuram District.
7. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
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Vellore, Vellore District.
8. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Coimbatore, Coimbatore District.
9. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Dindigul, Dindigul District.
10. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Theni, Theni District.
11. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Madurai, Madurai District.
12. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Sivagangai, Sivagangai District.
13. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Trichy, Trichy District.
14. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Virudhunagar, Virudhunagar District.
15. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Tirunelveli, Tirunelveli District.
16. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Pudukottai, Pudukottai District.
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17. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Karur, Karur District. .. Respondents
W.P. No.583 of 2015 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorarified mandamus to call for the
records of the 1st respondent in Letter No.40163/Pay Cell/2014-2 dated 8.10.2014
and quash the same and forbear the 2nd respondent from issuing any direction to
the respondents 3 to 17 based on the letter No.40163/ Pay Cell/2014-2 dated
8.10.2014 to recover the differential scale of pay, grade pay and allowances paid
to the petitioners.
For Petitioners : Mr. Father Xavier Arulraj, SC, for
Mr. R.Muruga Bharathi
For Respondents : Mr. S.Thangavel, Spl. GP
COMMON ORDER
The issue involved in the present case relates to fixation of pay of one category, which is alleged to be on par and inter-transferable with the other category, in the pre-revised scale of pay granted to the other category, more especially during the intervening period between the V and the VI Pay Commissions.
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2. The petitioners in the present petitions are presently Statistical Inspectors, who were appointed as Assistant Statistical Inspectors and, thereafter, promoted to the post of Statistical Inspectors and working in the Economics and Statistics Department. It is their case that prior to the implementation of the recommendations of the V Pay Commission, the petitioners were getting the scale of Rs.1600-2660 and that on the implementation of the recommendations of the V Pay Commission, the petitioners, in the post of Statistical Inspectors, were getting the pay of Rs.5300- 9000. Since the said pay was not on par with that of the Superintendents, with whom the petitioners were drawing equivalent pay all along, in view of the disparity in the pay scale, on the basis of the recommendation of the One Man Commission, the pay of the petitioners in the post of Statistical Inspector was revised to Rs.5500-9000 on par with that of the Superintendent. It is the further case of the petitioners that their pay have always been on par with that of their equivalent post of Superintendents.
3. With the implementation of the recommendations of the VI Pay Commission by the Central Government, Official Committee was constituted by the Government of Tamil Nadu to give necessary recommendations for revision 5/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch of scales of pay and allowances of the employees of the State Government and pursuant to the recommendation of the Official Committee, while the pay scale of the Superintendents were fixed at Rs.9300-34800 + Grade Pay of 4800, however, the post of Statistical Inspector was initially provided with scale of pay of Rs.9300-34800 + Grade Pay of 4400. Consequent upon the constitution of the One Man Commission to look into the anomalies that arose on the implementation of the recommendations of the Official Committee, the scale of pay of the Assistant Inspector/Statistical Inspector/Stamping Inspector were revised to Rs.9300-34800 + Grade Pay of 4800 by enhancing the Grade Pay by Rs.400/-, on par with the scale of Superintendents.
4. Initially enhancement of Grade Pay to Rs.4800 was sought by the Tamil Nadu Government Statistics Subordinate Officers' Association on par with the Superintendents, which was negatived by the Pay Grievance Redressal Cell leading to submission of further representation, which was fruitfully considered by passing G.O. Ms. No.45, Finance (Pay Cell) Department, dated 18.2.14, in and by which the scale of pay of the Statistical Inspectors and Statistical Officers were increased and the Grade Pay in respect of the Statistical Inspectors was increased 6/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch to Rs.4800 on par with that of the Superintendents with notional effect from 12.12.07 and with monetary benefit from 1.12.13..
5. It is the further case of the petitioners that prior to the implementation of the recommendations of the VI Pay Commission, on the directions of the Hon'ble Supreme Court to enhance the scale of pay of Superintendents by one level above the Assistant Section Officers in the Secretariat, who were receiving Rs.6500-10500, higher scale of pay of Rs.7000-11500, in the pre-revised scale was granted to the Superintendents and accordingly, fitment in the scale of pay of Rs.9300-34800 + Grade Pay of Rs.4800 was given to the post of Superintendents on the implementation of the VI Pay Commission. However, all along the post of Statistical Inspectors and Superintendents being on par with each other and are also inter-transferable and also carry the same educational qualification and being feeder post to the next higher grade of Statistical Officer, since the Statistical Inspectors were denied the pre-revised scale of pay of Rs.7000-11500, prayer is made for a direction to the respondents to confer the pre-revised scale of pay to the post of Statistical Inspectors on and from the date when the Superintendents were granted the said scale.
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6. Consequent upon the orders passed conferring the benefit of increased Grade Pay of Rs.4800 to the post of Statistical Inspectors, vide G.O. Ms. No.45, Finance (Pay Cell) Dept., dated 18.02.14, with notional benefit from 12.12.07 and monetary benefit from 1.12.13, however, on the deputation of some of the Statistical Inspectors to the Commercial Tax Department, their pay has been fixed in the pre-revised scale of Rs.7000-11500 and revised scale of Rs.9300-34800 + Grade Pay of Rs.4800 and, thereby, the said persons drawing pay in excess to their entitlement, Letter No.40163/Pay Cell/2014-2 dated 8.10.14 was issued directing recovery of the excess payment after giving due notice to the concerned individuals. Against the said order, another batch of writ petitions have been filed assailing the recovery passed, while one other batch of writ petitions have been filed to set aside the communication of the respondents directing recovery of the amount paid consequent upon the fixation of pay in the pre-revised scale.
7. Incidentally, on the basis of the opinion given by the then learned Government Pleader, the impugned Letter No.3360/Pay Cell /2015-6 dated 25.8.15 has been issued in and by which refixation of pay has been ordered by the Government in the pre-revised scale of pay of the Statistical Inspectors and Statistical Officers with a further order to initiate disciplinary action against the 8/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch officers responsible for wrong fixation of pay for the Statistical Inspectors/Statistical Officers without specific orders from the Government and also against the spirit of G.O. Ms. No.45, Finance (Pay Cell) Dept., dated 18.2.14, which has resulted in the filing of another set of petitions assailing the abovesaid impugned letter.
8. To sum up, the relief sought for by the petitioners in these batch of writ petitions are fourfold, viz.,
i) To abstain the respondents from refixing the scale of pay of the petitioners from the pre-revised scale, i.e., Rs.7000-11500 ;
ii) Quash the order of recovery relating to fixation of pay of the petitioners;
iii) To fix the pay of the petitioners, who hold the post of Statistical Inspectors, in the pre-revised scale of Rs.7000- 11500 on par with the Superintendents, if not fixed already; and
iv) To direct the respondents not to take any action against the staff/officers, who have fixed the pay of the 9/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch petitioners and other identically placed persons in the pre- revised scale of pay of Rs.7000-11500 on par with the Superintendents.
9. Learned senior counsel appearing for the petitioners submitted that implementation of the V Pay Commission by issuance of G.O. Ms. No.162, Finance (Pay Cell) Department, dated 13.4.98, the existing pay scale of Rs.1,600-2660 was revised to Rs.5300-8300, which was further revised to Rs.5500-9000 vide G.O. Ms. No.530, Finance (Pay Cell) Department dated 28.9.98. It is the submission of the learned senior counsel that the existing pay scale of Rs.1600-2660 was drawn by both the Superintendents as well as the Statistical Inspectors and even prior to the said revision, both the posts were paid identical scale of pay of Rs.905-1545.
10. Learned senior counsel for the petitioner further submitted that pursuant to the implementation of the VI Pay Commission by constitution of an Official Committee, the scale of pay of Statistical Inspectors and Superintendents were fixed at Rs.9300-34800, however, the Superintendents were given higher Grade Pay at Rs.4800, while the Statistical Inspectors were given lower Grade Pay at Rs.4400/-, which anomaly was also set right upon the representation by the 10/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch Government by issuance of G.O. Ms. No.45, Finance (Pay Cell) Dept., dated 18.2.14, thereby, Statistical Inspectors were also given equivalent pay scale of Rs.9300-34800 + Grade Pay of Rs.4800, on par with the Superintendents. However, while the Superintendents have been given monetary benefit from 12.12.07, however, the Statistical Inspectors were only given notional benefit from 12.12.07 with monetary benefit only from 1.12.13. Though both the posts are comparatively at par and inter-transferable/interchangeable, however, without any reason or rhyme, the petitioners, who are Statistical Inspectors have been denied the monetary benefit, which is arbitrary, unreasonable and wholly impermissible.
11. It is the submission of the learned senior counsel for the petitioners that the post of Statistical Inspectors and Superintendents being interchangeable, as both the posts are feeder category to the next higher post of Statistical Officer, the grant of pre-revised scale of pay of Rs.7000-11500 to the Superintendents should also enure to the benefit of the Statistical Inspectors, more so, when a direction has been given in G.O. Ms. No.234 to the effect that such of the interchangeable posts with that of the Superintendents as per service rules, the Heads of Department were directed to send necessary proposal for issuance of 11/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch necessary orders. Though no proper proposal was forwarded on behalf of the Statistical Department, however, on the basis of the representation, the petitioners were granted scale on par with that of the Superintendents in the revised scale of pay, which by itself shows that both the posts are equivalent and interchangeable and, therefore, the benefit of the pre-revised scale of pay at Rs.7000-11500 should be given to the petitioners as well.
12. It is the further contention of the learned senior counsel for the petitioners that Statistical Inspectors and Superintendents are feeder category to the post of Statistical Officers and the qualification prescribed in the Tamil Nadu General Subordinate Service Special Rules is possession of a degree with Statistics/Mathematics or Economics as main subject and putting in service of not less than two years in either of the categories. The above rules unequivocally establish that the posts of Superintendents and Statistical Inspectors are interchangeable/inter-transferable and that being the case, the posts being identical in all respects, the flow of benefits for the said posts should also be identical and, therefore, the petitioners, who are Statistical Inspectors, are also entitled for fixation of their pay in the pre-revised scale of Rs.7000-11500 on par with the Superintendents.
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13. Learned senior counsel drew the attention of this Court to the work allotment for the Statistical Inspectors as also the Superintendents, belonging to the Statistics and Economics Department, as found place in page Nos.94 and 98 of the typed set of papers, and submitted that the work allotted to both the posts being identical, it clearly reveals that the said posts are also interchangeable/inter-transferable and, therefore, the Statistical Inspectors also should have been granted scale of pay in the pre-revised scale, on par with the pay given to the Superintendents.
14. It is the contention of the learned senior counsel for the petitioner that in application of FR-23, the pay of the petitioners having been revised, they have been granted the benefits under the revised scale of pay and that the said revision should be with effect from the date of revision of the scale of pay. The Superintendents having been granted the revised scale of pay along with monetary benefits from 12.12.07, the petitioners also ought to be granted the said revised scale from 12.12.07 along with monetary benefits and disallowing the monetary benefits and making it available only from 1.12.13 is against the 13/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch letter and spirit of FR-23 and the recovery initiated pursuant thereto deserves to be set aside.
15. In support of his contentions, learned senior counsel for the petitioners placed reliance on the following decisions :-
i) Jaipal & Ors. - Vs – State of Haryana & Ors. (1988 (3) SCC
354);
ii) Arindam Chattopadhyay & Ors. - Vs – State of West Bengal & Ors. (2013 (4) SCC 152);
iii) Rohit Rasikchandra Pathak & Ors. - Vs – The Govt. of T.N. & Ors. (2015 (1) LW 854; and
iv) Union of India & Ors. - Vs – A.Rayer &Ors. (2018 (3) SCC 181
16. Per contra, learned Special Government Pleader appearing for the respondents submitted that the post of Statistical Inspectors and Superintendents are not interchangeable/inter-transferable, as the post of Superintendents come under the Ministerial Service, while that of the Statistical Inspectors are governed by the Tamil Nadu General Subordinate Service Special Rules and the two posts being covered under two different categories, the case of the petitioners to superimpose one post over the other merely on the ground that similar responsibilities/nature of work being performed by the petitioners 14/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch cannot be permitted, as acceding to such a request would create an anomaly between the two sets of staff, who are governed by two different sets of rules. In substance, it is the submission of the learned Special Government Pleader that while the Superintendent post is a Ministerial post, however, the post of Statistical Inspector is a technical post and, therefore, one cannot be swapped over the other.
17. Learned Special Government Pleader appearing for the respondents drew the attention of this Court to G.O. Ms. No.234, Finance (Pay Cell) Dept., dated 1.6.09, which finds place at page-73 of the typed set of papers, wherein in page-75, relating to revision of scale of pay of Superintendents in Tamil Nadu Ministerial Service, it has been categorically enumerated that only insofar as the posts, which are interchangeable with the posts of Superintendents in the Ministerial Service and Superintendents in other services such as Assistant Commercial Tax Officer in Commercial Taxes, Deputy Block Development Officer in Rural Development, Deputy Tahsildar in Revenue, Sub-Registrar Grade-II in Registration and Superintendent State Treasury Officer in Treasuries and Accounts Departments are treated to be equivalent and interchangeable posts and nowhere the posts of Statistical Inspectors finds a mention. Therefore, it is 15/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch submitted by the learned Special Government Pleader that it is the clear intention of the Government not to equate the posts of Statistical Inspectors with that of the Superintendents and, therefore, the plea for re-fixation of pay of Statistical Inspectors in the pre-revised scale of pay of Rs.7000-11500 on par with the Superintendents is wholly a misconception on the part of the petitioners.
18. It is the further submission of the learned Special Government Pleader that though many posts, similar to that of the post of Superintendents are available, not all the posts have been granted with equivalent scale of pay, which would be evident from G.O. Ms. No.45. Though the case of the Statistical Inspectors and Statistical Officer for revision of scales of pay in Economics and Statistics Department, was initially negatived, however, the post of Statistical Inspectors having been placed in offices to attend to office works, they were granted scale of pay on par with the Superintendents in the VI Pay Commission and, accordingly, the shortfall in the Grade Pay by Rs.400 was enhanced, thereby, making the scale of pay of the Statistical Inspectors at Rs.9300-38400 + Grade Pay of Rs.4800 and that of the Statistical Officers was enhanced to Rs.9300-38400 + Grade Pay of Rs.5100.
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19. Learned Special Government Pleader also drew the attention of this Court to clause (4) of G.O. Ms. No.45, wherein it has been spelt out that consequent upon the revision of pay of Statistical Inspector, the promotional post of Statistical Officer, which is equivalent to the promotion post of Superintendents, the scale of pay stands enhanced. Further, the representation of the Association, as reflected in the above G.O. Ms. No.45 itself discloses that the scale of pay of Statistical Officer is on par with the promotional post of Superintendent and, therefore, equating the post of Superintendent and Statistical Inspector for giving the pre-revised scale would not arise consequent upon the revision of scale of pay of the Superintendents to Rs.7000-11500 on the directions of the Hon'ble Supreme Court.
20. It is the further submission of the learned Special Government Pleader that the impugned letter No.40163/Pay Cell/2014-2 dated 8.10.2014 categorically evidences that the post of Statistical Inspector is not an inter-transferable post with that of the Superintendents and also not a Ministerial Post. The letter further evidences that the posts, which were inter-transferable with the post of Superintendents were granted revised scale of pay on par with Superintendents with Grade Pay of Rs.4800. It is only based on the representation of the 17/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch Association, the Statistical Officers and Statistical Inspectors were provided with Grade Pay of Rs.5100 and Rs.4800 and merely because they have been granted that grade pay would not make their post inter-transferable with that of the Superintendents to provide them the pre-revised pay of Rs.7000-11500.
21. Further, it is the stand of the respondents that the post of Statistical Inspector is a technical post governed by the Special Rules for the Tamil Nadu Statistical Service, whereas the post of Superintendents is governed by the Tamil Nadu Ministerial Service and, therefore, the posts under two different services is not interchangeable/inter-transferable, though the duties assigned to those posts may be the same. Merely because the duties assigned are the same alone would not be a determining factor to grant identical scales of pay at every stage.
22. It is the further stand of the learned Special Government Pleader that the petitioners have not challenged the impugned order in G.O. Ms. No.45, Finance (Pay Cell) Dept., dated 18.2.14, in and by which the Statistical Officers and Statistical Inspectors were provided with enhanced Grade Pay in the revised scale. It is further submitted by the learned Special Government Pleader that the Statistical Inspectors were not provided with re-fixation of pay in the pre-revised 18/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch scale of Rs.7000-11500. Further, the petitioners having had knowledge and sought for pay fixation only in the revised scale and also having given undertaking that they would refund the excess payment received in case of wrong fixation, cannot now come before this Court and plead that their pay have to be fixed on par with the Superintendents in the pre-revised scale. G.O. Ms. No.45 provides revision of pay of scale of Statistical Inspectors only in the revised scale of pay of Rs.9300-34800 + Grade Pay of Rs.4800 and does not in any way alter the pre- revised scale of pay and that the revision, though has been granted from 12.12.07, but it is only notionally and monetary benefit flows only from 1.12.13 onwards.
23. It is the further submission of the learned Special Government Pleader that the post of Statistical Inspector not being interchangeable with Superintendents, they were not allowed the pre-revised scale of pay of Rs.7000- 11500 and, therefore, the question of providing option to them with reference to the provisions under FR-23 would not arise. Therefore, the clarification issued in Government Letter Nos.34124/Pay Cell/2009-1, Finance dated 26.6.09 and the Government Letter No.41530/Pay Cell/2009-1, Finance dated 28.7.09 is not applicable to the post of Statistical Inspector and that enhancement of Grade Pay 19/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch alone is envisaged in G.O. Ms. No.45 and the petitioners cannot read anything further into the said Government Order for enhancement of their benefit.
24. It is the further submission of the learned Special Government Pleader that the recommendations of the One Man Commission, 2010, recommended pay for the posts, which are analogous with that of the Superintendent, which was revised from Rs.9300-34800 + Grade Pay of Rs.4800 w.e.f. 12.12.07, but those posts have not been permitted to fix their pay in the upgraded pre-revised scale of pay of Rs.7000-11500 on par with the Superintendents under FR-23. That being the case, the Statistical Inspectors alone cannot claim parity with the Superintendents in fixation of their pay in the pre-revised scale, more so, when their posts are not even interchangeable with that of the Superintendents.
25. It is the further submission of the learned Special Government Pleader that merely because similar work is being taken from the Superintendents and Statistical Inspectors cannot be the basis to grant equivalent pay, as the pay fixation in the different categories of posts under the Ministerial service and Statistical service varies. In fact, the Statistical Inspectors have been assigned differing work even between two identical posts, which is evidenced from the 20/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch work allocation chart filed by the petitioners in the typed set of documents and, therefore, the plea of the petitioners that they also discharge similar work as that of the Superintendents and, therefore, they are entitled to have their pay fixed on par with the Superintendents in the pre-revised scale of pay cannot be sustained.
26. It is therefore the submission of the learned Special Government Pleader that the petitioners not being entitled to have their pay fixed in the pre- revised scale of pay on par with the Superintendents, on misrepresentation having drawn pay in excess of their entitlement and also having given an undertaking that any pay fixed in excess to their entitlement would be refunded, the petitioners are bound to make good the loss caused to the exchequer by refunding the excess payment received by them and merely because they have been granted higher emoluments over and above their entitlement, would not entitle them to hold the said amount. Learned counsel, in support of the above contentions, placed reliance on the following decisions :-
i) Chandi Prasad Uniyal – Vs – State of Uttrakhand (2012 (8) SCC 417);
ii) Union Territory, Chandigarh & Ors – Vs – Gurcharan Singh & Anr. (2014 (13) SCC 598) 21/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch
27. This Court gave its undivided attention to the contentions advanced by the learned counsel appearing on either side and also perused the various documents, which are available in the typed set of papers, to which this Court's attention was drawn as also the decisions on which reliance has been placed by the learned counsel for the parties.
28. The crucial questions that arise for consideration in these petitions are:-
i) Whether the posts of Statistical Inspectors and Superintendents are interchangeable/inter transferable.
ii) Whether the petitioners are entitled to have their scale of pay fixed on par with the Superintendents in the pre-revised scale of pay of Rs.7000-11500.
29. The scale of pay of the Statistical Inspectors in the IV Pay Commission was Rs.1600-2660, which stood subsequently revised to Rs.5300-8300 in the V Pay Commission. Thereafter, based on the recommendations of the One Man Commission constituted vide G.O. Ms. No.170, Finance (PC) Dept., 21.4.1998, 22/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch G.O. Ms. No.530, Finance (Pay Cell) Dept., dated 28.09.98 was issued by which the scale of pay of Statistical Inspector was revised to Rs.5500-9000. At these points of time, the scale of pay of Superintendent in the IV Pay Commission was Rs.1600-2660 and revision was made in the V Pay Commission to Rs.5500-9000. There is no quarrel upto this point in the scales of pay of the Statistical Inspectors and Superintendents, as they were drawing equal scales of pay. Dispute arises only on the implementation of the VI Pay Commission and the pre-revision made in the scale of pay of the Superintendent, which was not granted to the Statistical Inspectors.
30. Between the V and VI Pay Commission, in view of the revision of scale of pay of Assistant Section Officers in the Tamil Nadu Secretariat Service from Rs.5500-9000 to Rs.6500-10500, pursuant to the directions of the Hon'ble Supreme Court, the cadre of Ministerial Superintendents, who were higher in hierarchy than the Assistant Section Officers, the Ministerial Superintendents were provided with a scale of pay, which is below the existing higher scale of pay of Rs.8000-13500 and, accordingly, the Ministerial Superintendents were provided with a scale of pay of Rs.7000-11500, one step above the Assistant Section Officers in the Secretariat Service, but below the next existing higher 23/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch scale. Consequent upon the said revision in the scale of pay prior to the revision of pay pursuant to the VI Pay Commission, the Ministerial Superintendents were fixed in the scale of pay of Rs.9300-34800 + Grade Pay of Rs.4800 in the revised pay structure. There is no quarrel with regard to the fixation of scale of pay of the Ministerial Superintendents.
31. The issue raised by the Statistical Inspectors before this Court, on the above undisputed facts, is that the post of Statistical Inspectors, being interchangeable/inter transferable with the post of Superintendents and that the work discharged by the Statistical Inspectors is similar to that of the Superintendents and that the Statistical Inspectors having enjoyed the similar scale of pay on par with the Superintendents all along and that even in the VI Pay Commission, the Statistical Inspectors having been granted equivalent pay to that of the Superintendents, the petitioners, who are holding the post of Statistical Inspectors, are also eligible to have their scale of pay fixed in the pre-revised scale at Rs.7000-11500 and non-grant of the said pre-revised scale of pay to the Statistical Inspectors is grossly unsustainable and impermissible. 24/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch
32. There is no dispute with the fact that the petitioners, who hold the post of Statistical Inspectors enjoyed similar pay scale to that of the Superintendents prior to the VI Pay Commission. Even in the VI Pay Commission, when their pay was initially fixed at Rs.9300-34800 + Grade Pay of Rs.4400, on the basis of the representation submitted by the Association, the Government had considered their request favourably and granted them the enhanced scale of pay of Rs.9300-34800 + Rs.4800, on par with the scale of pay received by the Superintendents, by issuing G.O. Ms. No.45, Finance (Pay Cell) Department, dated 18.2.14. It is here the stand of the petitioners that once the Government recognised their post as equivalent to that of Superintendents and granted the petitioners equivalent scale of pay, the petitioners are entitled to have their pay fixed in the pre-revised scale of Rs.7000-11500 as was given to the Superintendents.
33. In this regard, reference requires to be made to G.O. Ms. No.234, Finance (Pay Cell) Dept., dated 1.6.09 in and by which the Government of Tamil Nadu accepted the recommendations of the Official Committee for grant of pay on the basis of the recommendations of the VI Central Pay commission. In the VI Pay Commission recommendations, different pay bands were carved out for the 25/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch revised scale of pay of Rs.9300-34800 which takes within its fold varying scales of pay, as was existing then prior to acceptance of the recommendations of the VI Pay Commission. For the revised scale of pay of Rs.9300-34800, as is evident from the typed set filed by the petitioners, not less than six different Grade Pay have been fixed ranging from Rs.4200 to Rs.4700.
34. From the above recommendations, it is evident that existing pay scale of Rs.5300-8300 and Rs.5500-9000 were given two different Grade Pay of Rs.4300 and Rs.4400. A perusal of G.O. Ms. No.530, Finance (Pay Cell) Dept., dated 28th Sept., 1998, reveals that initially the post of Statistical Inspector was granted pay scale of Rs.5300-8300, which was, thereafter, revised to Rs.5500- 9000. From the existing pay scale structure based on the recommendations of the VI Pay Commission, it reveals that Rs.5500-9000 was granted grade pay of Rs.4400, which pertains to Statistical Inspectors.
35. Vide implementation of the VI Pay Commission, as is reflected from G.O. Ms. No.234, Finance (Pay Cell) Dept., dated 01.06.09, the posts of Assistant Commercial Tax Officer in Commercial Taxes, Deputy Block Development Officer in Rural Development, Deputy Tahsildar in Revenue, Sub Registrar Grade-II in 26/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch Registration and Superintendent State Treasury Officer in Treasuries and Accounts Department, which were interchangeable with that of Superintendent in Ministerial service were granted identical scales of pay on par with the Superintendent in Ministerial service. It further transpires from the said government order that posts which are interchangeable with that of the Superintendents in Ministerial service, the Heads of the Departments were directed to send necessary proposals.
36. It is evident from the materials available on record that no such proposal was forwarded from the Head of the Department of the Statistical Department to the Government relating to the post of Statistical Inspectors defining them as interchangeable post with that of the Superintendents in Ministerial Service. Following the heels thereof, the Statistical Inspectors having not granted similar scale to that of the Superintendents, representation was made by the Tamil Nadu Government Statistics Subordinate Officers' Association and based on the said representation, the post of Statistical Inspectors and the promotional post of Statistical Officers were provided with scale of pay of Rs.9300-34800 + Grade Pay of Rs.4800 and Rs.9300-34800 + Grade Pay of Rs.5100, vide G.O. Ms. No.45 dated 18.2.14. It was further made clear in the said 27/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch government order that such enhancement is given notional effect from 12.12.07 and monetary benefit from 1.12.13.
37. It is to be pointed out in the above backdrop that G.O. Ms. No.45, which gave the enhanced benefit of grade pay on par with the Superintendents to the Statistical Inspectors did not anywhere state that the post of Statistical Inspectors is interchangeable/inter-transferable with that of the Superintendents. However, only based on the request of the Association, where it has been submitted that the Statistical Inspectors, at times were posted in the offices to attend to works as that of the Superintendents and, therefore, they should be granted scale on par with the Superintendents, the said enhanced grade pay has been awarded.
38. From the above discussion, it is evident that time and again, the pay of the Statistical Inspectors was enhanced on par with the scale of pay of the Superintendents on the basis of representations. Nowhere mention is made in the Government Orders, noted above, that the post of Statistical Inspectors is equivalent to that of the Superintendents for giving them equivalent scales of pay on par with Superintendents. Merely because the Statistical Inspectors are being 28/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch granted scale of pay on par with that of the Superintendents, could it be construed that the posts are interchangeable/inter-transferable. To answer this crucial issue, it is but necessary to have a look at the Tamil Nadu General Subordinate Service Special Rules relating to the Department of Economics and Statistics.
39. Part II – Class XLII relating to the Department of Economics and Statistics deals with the posts, which fall under the above category. Clause (2) relates to the appointment to the various posts as categorised in Clause (1). For better clarity, the relevant portion is extracted hereunder :-
Category Method of Appointment STATISTICAL OFFICER 1. By promotion from the category of Statistical Inspector or
2. By recruitment by transfer from the category of Superintendent in the Department of Economics and Statistics Provided that 90% of vacancies shall be filled up by the promotion and 10% by recruitment by transfer;
Provided further that in the case of recruitment by transfer the ratio between graduates in Statistics, Mathematics or Economics and others shall be 1:2;
...........” 29/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch
40. From the above method of appointment enumerated in Clause (2) above, it is abundantly clear that while the persons holding the post of Statistical Inspector, on promotion, would adorn the post of Statistical Officers, however, the persons holding the post of Superintendent in the same Department shall be appointed by transfer to the post of Statistical Officer. While the movement of Statistical Inspectors to the next higher post of Statistical Officer is through vertical movement, however, movement of Superintendent to the post of Statistical Officer is through horizontal movement. From the above, it is clear that while the post of Superintendent and Statistical Officer could be said to be equatable post, as the post of Statistical Officer is filled up by transfer by persons holding the analogous post of Superintendent, however, the persons, holding the lower post of Statistical Inspectors are granted promotion to the next higher post of Statistical Officers. Therefore, equating the post of Statistical Inspectors with that of Superintendent and terming both to be interchangeable/inter- transferable post is wholly unjustified and impermissible. Therefore, the argument addressed on behalf of the petitioners that the post of Statistical Inspectors and Superintendent are interchangeable/inter-transferable does not merit acceptance.
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41. The further contention placed on behalf of the petitioners is with regard to the equivalency of the post of Superintendent and Statistical Inspectors and to address this contention, the Office Order No.11/Aa2/2011 dated 21.10.11 issued by the Department of Economics and Statistics is vital, which finds place in the typed set of papers filed by the petitioners. It is the submission of the learned senior counsel for the petitioners that the petitioners, who are Statistical Inspectors, doing similar and identical work as that of the Superintendents, should be termed as equals and given the same scale of pay as that of the Superintendents.
42. In the abovesaid official communication, it is seen that one Mr.K.R.Ramamoorthy, Statistical Inspector, has been assigned works in equivalence to one Mrs.S.Malarvizhi, Superintendent. Therefore, it is sought to be contended that both the persons discharging identical works should be given identical scales of pay throughout. However, the said contention fails to inspire the confidence of this Court, as the materials found in the same work allocation chart paints a different picture. While K.R.Ramamoorthy and Mrs.S.Malarvizhi, who are Statistical Inspector and Superintendent are given identical works, subordinate to the said Mrs.S.Malarvizhi, one Mrs.N.Rama in the cadre of 31/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch Statistical Inspector, is assigned different works. The said works assigned to Mrs.N.Rama are in no way equivalent to that of Mrs.s.Malarvizhi. Similarly, persons, who are manning the respective sections, in the cadre of Statistical Inspectors, below them other Statistical Inspectors are found to function, who do not have identical works as that of the Superintendent. But nowhere in the said work allocation chart, a Superintendent in placed below a Statistical Inspector, which clearly portrays a picture that the Superintendent is in a higher cadre than the Statistical Inspector and, therefore, the two posts cannot be said to be interchangeable/inter-transferable post. Merely because some Statistical Inspectors, by virtue of their long service, are allotted identical and similar works as that of the Superintendents would in no way be permissible to term the post of Statistical Inspectors as equivalent to the post of Superintendents.
43. In this regard, clause (2), as quoted above, relating to appointment in the cadre of Statistical Officer gains significance. As stated supra, while the Statistical Inspectors, by way of promotion, land at the seat of the Statistical Officer, which is a vertical movement however, the Superintendents, by virtue of their being in the same category as a Statistical Officer, land in the seat of the Statistical Officer by way of transfer, which is a horizontal movement. Therefore, 32/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch equating two unequals to be equals, merely because works of similar nature are being allotted could in no way enure to the benefit of the petitioners to claim pay re-fixation on par with the Superintendents in the pre-revised pay scale.
44. One other crucial factor which weighs with this Court is the qualification that is required for the Statistical Inspectors to be promoted as Statistical Officers. While the qualification prescribe that with effect from August, 2000, the field experience for a period of not less than three years on duty in the post of Statistical Inspector in any of the Blocks in the District Statistical Units is made mandatory in case of persons for being promoted to the post of Statistical Officer, no such qualification is prescribed for the Superintendent. This also clearly shows the post of Superintendent is a feeder category to the post of Statistical Officer only by way of transfer and not by way of promotion, which is not the case with Statistical Inspectors.
45. This Court has no quarrel with the proposition of law laid down by the Hon'ble Apex Court that the doctrine of equal pay for equal work would be synonymous of equality between two posts, even be it temporary and permanent posts. But the same would be relatable only to persons holding the identical 33/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch posts, which are swappable and in the absence of any swapping, merely assigning supervisory works to only a few persons, with persons of the equivalent rank made to do other work, would not make the whole posts of Statistical Inspectors equatable and identical to the post of Superintendent.
46. The decision of this Court in Rohit Rasikchandra Pathak's case (supra), on which reliance was placed on behalf of the petitioners, would in no way aid the case of the petitioners, as the case therein falls totally in a different sphere. In the said case, not only the petitioners therein were enjoying identical scales of pay with that of the persons, who held identical posts and non-grant of identical scales led to the matter being addressed by the Head of the Department to the Government and the Government considered their case favourably based on the recommendation of the Head of the Department. However, they were not given monetary benefit from a particular date, as was given to identically placed persons, holding analogous posts. The Division Bench of this Court only held that non-grant of monetary benefit from the particular date on which the persons holding the identical and analogous posts were granted, was bad and directed the respondent to give the monetary benefit to the petitioners therein from the date on which the persons holding identical and analogous posts were given the 34/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch monetary benefit. In the case on hand, neither Head of the Department, on the basis of G.O. Ms. No.234, Finance (Pay Cell) Department, dated 1.6.09, addressed the Government informing about the identical nature of post of the Superintendent and the Statistical Inspector, nor the representation of the Statistics Subordinate Officers Association equated the two posts while seeking the benefit of equivalent scale of pay. The only ground for making the representation which resulted in the grant of enhanced grade pay was the fact that they have been getting identical pay all along and, therefore, they be granted identical pay now as well, which resulted in the issuance of G.O. Ms. No.45.
47. Further, it transpires from G.O. Ms. No.45 that even the Association, of its own volition, has accepted that the scale of pay of the promotional post of Statistical Officer be enhanced on par with the promotional post of Superintendent. Therefore, it is crystal clear that the Association, of its own accord, has accepted that the post of Statistical Officer and Superintendent are alone identical and at par and it is not the post of Statistical Inspector, which is at par. That being the stand of the Association, of which the petitioners are members, it would not lie in the mouth of the petitioners to claim that they 35/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch should be considered on par with the post of Superintendent and granted identical scale of pay of Rs.7000-11500 in the pre-revised scale. The discussion of this Court above, leads to the only inference that the prayer for refixation of the pay scale of the Statistical Inspectors with that of the Superintendents in the pre- revised scale of pay cannot be acceded to.
48. In the aftermath of this Court holding that the petitioners, who are holding the post of Statistical Inspectors, are not entitled to have their pay fixed in the pre-revised scale of pay of Rs.7000-11500 on par with the Superintendents, G.O. Ms. No.328, Finance (Pay Cell) Department, dated 31.10.17, in and by which the persons drawing higher scale of pay on the basis of the Court orders, their pay to be subject to the orders passed in the said petitions, it is made clear that such of the option exercised by the persons, drawing higher scale of pay on the basis of the stay orders granted by this Court, would stand reverted back to their earlier scale of pay and the option given by them for getting the pre-revised scale of pay on par with the Superintendents would not henceforth be available to them. Consequently, the refixation of pay of the petitioners sought to be made vide Letter No.3360/Pay Cell/2015-6 dated 25.8.2015 is confirmed. In view of the orders passed above, Letter No. 40163/Pay Cell/2014-2 dated 8.10.2014 is 36/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch affirmed to the extent that the respondents are at liberty to take necessary action to have the pay of the petitioners and other identically placed persons fixed in the appropriate scale of pay, subject to the orders passed above.
49. Insofar as the challenge made to Letter No.3360/Pay Cell/2015-6 dated 25.08.2015 is concerned, in view of the orders passed by this Court disallowing the prayer of the petitioners for fixation of their scale of pay in the pre-revised scale of pay of Rs.7000-11500 on par with the Superintendents, the respondents are at liberty to refix the scale of pay of the petitioners and other identically placed persons in the appropriate scale of pay to which the petitioners and other identically placed persons are entitled and who have given such option for re-fixation of pay in the pre-revised scale. It is further made clear that it is open to the respondents to initiate disciplinary action against the officers, who are responsible for wrong fixation of pay, which is not in tune with the directions for pay fixation made in G.O. Ms. No.45, Finance (Pay Cell) Department, dated 18.2.14.
50. Insofar as the recovery of the amount paid to the petitioners and persons identically placed as ordered vide Letter No. 40163/Pay Cell/2014-2 37/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch dated 8.10.2014 is concerned, on the basis of the fixation of their pay in the pre- revised scale on par with the Superintendents, the same having been done not by the individuals, but by the administrative arm of the Government, putting the fault on the petitioners and persons identically placed would be impermissible. Therefore, any amount paid due to wrong fixation of scale of pay cannot be sought to be recovered from the petitioners and persons identically placed, as has been the consistent view of the Courts and the exercise of the Government insofar as recovery of the amount from the petitioners and persons similarly placed cannot be sustained and, accordingly, the said order of recovery sought to be made vide Letter No.40163/Pay Cell/2014-2 dated 8.10.2014 is set aside.
51. For the reasons aforesaid, the writ petitions are dismissed, however, with the following observations and directions :-
i) The petitioners are not entitled for fixation of pay in the pre-revised scale of pay of Rs.7000-11500 and any refixation made shall accordingly stand modified to the correct scale of pay for the post of Statistical Inspectors;
ii) The respondents are at liberty to take action against the persons, who had wrongly fixed the pay of the Statistical Inspectors in the pre-revised scale of pay of Rs.7000-11500 and granted monetary benefits from 38/42 https://www.mhc.tn.gov.in/judis/ ____________ W.P. Nos.583/2015, etc. Batch 12.12.07, which is not in consonance with G.O. Ms. No.45, Finance (Pay Cell) Department, dated 18.02.2014; and
iii) Recovery, if any, initiated by the respondents to recover the amounts that has been paid to the petitioners and persons identically placed on account of refixation of pay in the pre-revised scale of Rs.7000-11500 for which stay has been granted by this Court, the said stay granted is made absolute and the respondents are barred from making any recovery of the amount already paid to the petitioners and other identically placed persons.
Consequently, connected miscellaneous petitions are closed. However, there shall be no order as to costs.
21.12.2020
Index : Yes
Internet : Yes
GLN
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To
1. The Secretary to Government
Finance Department
Government of Tamil Nadu
Fort St. George, Chennai 600 0069.
2. The Principal Secretary - cum - Commissioner
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
3. The Director
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
4. The Assistant Director
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
5. The Joint Director (Admin)
Department of Economic & Statistics
D.M.S. Complex, Chennai 600 006.
6. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Kancheepuram, Kancheepuram District.
7. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Vellore, Vellore District.
8. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Coimbatore, Coimbatore District.
9. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Dindigul, Dindigul District.
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10. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Theni, Theni District.
11. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Madurai, Madurai District.
12. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Sivagangai, Sivagangai District.
13. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Trichy, Trichy District.
14. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Virudhunagar, Virudhunagar District.
15. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Tirunelveli, Tirunelveli District.
16. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Pudukottai, Pudukottai District.
17. The Deputy Director of Statistics
O/o the Deputy Director of Statistics
Karur, Karur District.
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NOS. 583 OF 2015, etc. Batch
Pronounced on
21.12.2020
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