Madras High Court
M.Emrose vs Commissioner on 23 December, 2021
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.7307 of 2020 and etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 02.08.2021
Pronounced On 23.12.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.Nos.7307, 7296, 7309, 10277, 10825, 7312, 7367, 7293,
7292, 7316, 7363, 7317, 7295 & 7314 of 2020 and
12998 & 33159 of 2019
and
W.M.P.Nos.13136, 16920, 8699, 8702, 8708,
8710, 8728, 8730, 8733, 8734, 8739,
8742, 8797, 8804 of 2020
(Through Video Conferencing)
W.P.No.7307 of 2020
M.Emrose ... Petitioner
Vs.
1.Commissioner,
Greater Chennai Corporation,
Ripon Building,
Chennai – 600 003.
2.Assistant Engineer,
Greater Chennai Corporation,
Mechanical Engineering Department,
Inspection Vehicle Department,
No.19, Adithanar Salai, Pudupet,
Chennai – 600 002.
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https://www.mhc.tn.gov.in/judis
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W.P.No.7307 of 2020 and etc. batch
3.Asst. Executive Engineer,
Greater Chennai Corporation,
Mechanical Engineering Department,
Inspection Vehicle Department,
No.19, Adithanar Salai, Pudupet,
Chennai – 600 002. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, to call for the records
of the impugned proceedings issued by the second and third respondents
in E.Po.Thu.Na.Ka.No.D2/00662/2019, dated 12.12.2019 and quash the
same and direct the first respondent to restore the pay scale of Rs.9300 –
34800 + 4200/-.
For Petitioner : Mr.T.Mohan, Senior Counsel
for Mr.S.R.Sankareshwaran
For Respondents : Mr.R.Gopinath,
Standing Counsel.
COMMON ORDER
By this common order, all these sixteen (16) Writ Petitions are being disposed.
2. W.P.Nos.7309, 7314, 7316 & 7317 of 2020 have been filed by the petitioners who are working as Motor Mechanics for quashing the ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 57 W.P.No.7307 of 2020 and etc. batch following impugned orders dated 17.02.2020 issued by the second respondent and for directing the first respondent to restore the pay scale of these petitioners to Rs.9300-34800+4200/-. Details of the petitioners are as under:-
Table No. 1
Sl. W.P.No. Name of the Post of Impugned Order Pay Scale No. Petitioner Appointment Ref. No. 1 7309/2020 A.Ignatius Motor E.Po.Thu.Va. 825-15-900-
Ponbabu Mechanic Se.Pa.Na.Ka. 20-1200 No.B2/0866/2019 2 7314/2020 T.Devendran Motor E.Po.Thu.Va. 825-15-900-
Mechanic Se.Pa.Na.Ka. 20-1200
No.B2/0874/2019
3 7316/2020 K.Annamalai Assistant E.Po.Thu.Va. 775-12-835-
Motor Se.Pa.Na.Ka. 15-1030
Mechanic No.B2/0883/2019
4 7317/2020 V.Damodaran Assistant E.Po.Thu.Va. 775-12-835-
Motor Se.Pa.Na.Ka. 15-1030
Mechanic No.B2/0873/2019
3. W.P.Nos.7292, 7293, 7295 & 7296 of 2020 have been filed by the petitioners who are working as Skilled Assistants Grade-I with the first respondent under third respondent to quash the impugned order issued by the second and third respondents in E.Po.Thu.The.Se.Va.Pa.Na.Ka.No.A10/19 to 22/2020, dated 10.03.2020 ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 57 W.P.No.7307 of 2020 and etc. batch and to direct the first respondent to restore the pay scale of these petitioners to Rs.9300-34800 + 4200/-. Details of the petitioners are as under:-
Table No. 2
Sl. W.P.No. Name of the Post of Pay Scale No. Petitioner Appointment 5 7292/2020 D.Elumalai Assistant Motor 775-12-835-15-1030 Mechanic 6 7293/2020 R.Gangadharan Motor Mechanic 825-15-900-20-1200 7 7295/2020 R.Raju Motor Mechanic 825-15-900-20-1200 8 7296/2020 C.Alexandar Motor Mechanic 825-15-900-20-1200
4. W.P.No.10277 of 2020 has been filed by a Motor Mechanic for a Writ of Mandamus, to direct the second and third respondents therein to fix the Selection Grade pay scale of Rs.9300 – 34800 + 4200 as per Row (8) of Annexure – I in Letter No.63305/Pay Cell/2010 dated 08.11.2010 and pay arrears. Details of the petitioner are as under:- Table No. 3
Sl. W.P.No. Name of the Post of Pay Scale No. Petitioner Appointment 9 10277/2020 D.Gurumurthy Motor Mechanic 825-15-900-20-1200 ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 57 W.P.No.7307 of 2020 and etc. batch
5. W.P.No.10825 of 2020 has been filed by a Motor Mechanic for issuance of Writ of Certiorarified Mandamus, to call for the records of the impugned order dated 29.01.2020 bearing reference E.Po.Thu.Va. Se.Pa.Na.Ka.No.M2/1065/2019 passed by the third respondent and set aside the same and to direct the second respondent to restore the Selection Grade pay scale of Rs.9300 – 34800 + 4200/- notionally from 01.01.2006 and monetarily from 01.08.2010. Details of the petitioner are as under:- Table No. 4
Sl. W.P.No. Name of the Post of Pay Scale No. Petitioner Appointment 10 10825/2020 R.Resselraj Motor Mechanic 825-15-900-20-1200
6. During the pendency of W.P.No.10825of 2020,the petitioner (R.Resselraj) died on 26.09.2021 while in service. The legal representatives of the petitioners filed W.M.P.No.23144 of 2021 to implead them as second to fourth petitioners. By an order dated 27.10.2021, they were impleaded as second to fourth petitioners.
7. W.P.Nos.7307 & 7312 of 2020 have been filed by Skilled ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 57 W.P.No.7307 of 2020 and etc. batch Assistants Grade-I, to call for the records of the impugned proceedings issued by the second and third respondents in E.Po.Thu.Na.Ka.No.D2/00662/2019, dated 12.12.2019 and quash the same and to direct the first respondent to restore the pay scale of Rs.9300 – 34800 + 4200/-. Details of the petitioners are as under:-
Table No.5 Sl. W.P.No. Name of the Post of appointment Pay Scale No. Petitioner 11 7307/2020 S.Bhagavathi Assistant Motor Mechanic 775-12-835-15-1030 Sundaram 12 7312/2020 M.Emrose Assistant Motor Mechanic 775-12-835-15-1030
8. W.P.Nos.7363& 7367 of 2020 have been filed by Motor Mechanics who retired from service to quash the impugned orders passed by the second respondent and to direct the first respondent to restore the pay scale of Rs.9300-34800+4200.
Table No. 6
Sl. W.P.No. Name of the Post of Impugned Order Pay Scale
No. Petitioner Appointment Ref.No.
13 7363/2020 R.Venkatraman Motor E.Po.Thu.Ma.VaPa.Na 825-15-900-
Mechanic .Ka.No. M2/9HH/2019 20-1200 14 7367/2020 N.Vajjiravelu Assistant E.Po.Thu.Ma.Va. 825-15-900-
Motor Pa.Na.Ka.No. 20-1200
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W.P.No.7307 of 2020 and etc. batch
Mechanic M2/670/2019
9. W.P.Nos.12998 & 33159 of 2019 have been filed by Motor Mechanics who retired from service for declaring the action of the respondents in recovering a sum of Rs.7,86,914/- & Rs.7,77,882/- and to direct the respondents to refund the recovered amount, fix the pay in respect of the petitioner as in the case of V.Balaji as directed by this Court by an order dated 09.03.2012 in W.P.No.40108 of 2006, revise the pension.
Table No.7
Sl. W.P.No. Name of the Post of Pay Scale
No. Petitioner Appointment
15 12998/2019 K.L.Radhakrishnan Motor Mechanic 825-15-900-20-1200
16 33159/2019 N.Krishnamurthy Motor Mechanic 825-15-900-20-1200
10. The pay and salaries of the petitioners were revised pursuant to implementation of VI Pay Commission for the Central Government Employees vide G.O.Ms. No.234 Finance (Pay Cell) Department dated 01.06.2009 with effect from 01.01.2006. ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 57 W.P.No.7307 of 2020 and etc. batch
11. These petitioners ended up getting a higher pay/pension due to the confusion in the clarification of the then Principal Secretary to Government of Tamil Nadu vide Letter dated 08.11.2010 bearing reference Letter No.63305 / Pay Cell / 2010-11 issued during the implementation of the above G.O.Ms.No.234, Finance (Pay Cell) Department, dated 1.6.2009.
12. The so called clarification in Letter No.63305 / Pay Cell / 2010- 11, dated 08.11.2010 of the then Principal Secretary led to confusion. It not only amended G.O.Ms. No.234 Finance (Pay Cell) Department, dated 01.06.2009 by incorporating the content of G.O.Ms.No.162 Finance (Pay Cell) Department, dated 13.08.1998 but also created confusion not only in the respondents corporation but also in several other departments where there were several non-promotional posts.
13. The pecuniary advantages which were conferred on these petitioners are now sought to be denied in the impugned orders when these petitioners are on the verge of retirement and in the case of four petitioners who have retired.
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14. Heard the learned Senior Counsel and the learned counsel for the respective petitioners and the learned Standing Counsel for the respondents.
15. All these petitioners were appointed as Assistant Motor Mechanics or Motor Mechanics during the year 1991. Their scale of pay was revised pursuant to G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 issued by the Government of Tamil Nadu. This was pursuant to the implementation of V Central Pay Commission for the Central Government Employees.
16. The petitioners in W.P.Nos.7363 & 7367 of 2020 and W.P.Nos.12998 & 33159 of 2019 in Table Nos.6 & 7 retired from service on the date when these Writ Petitions have been filed.
17. Some of the petitioners in Table Nos.1, 3 & 4 are serving as ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 57 W.P.No.7307 of 2020 and etc. batch “Motor Mechanics”, while some of the petitioners in Table Nos.2 & 5 are serving as “Skilled Assistant Grade-I” on the date of these Writ Petitions.
18. The petitioners at Sl.Nos.1, 2, 9, 10, 13, 15 & 16 were appointed as Motor Mechanics and were working as the same designation of Motor Mechanic on the date of filing of the respective Writ Petitions. The petitioners at Sl.Nos.3, 4 & 14 were appointed as “Assistant Motor Mechanics” and later promoted as “Motor Mechanics”.
19. The petitioners at Sl.Nos.5, 11 & 12 who were appointed as “Assistant Motor Mechanics” and the petitioners at Sl.Nos.6, 7 & 8 who were appointed as “Motor Mechanics were promoted as “Skilled Assistants Grade – I” on the date of filing of the respective Writ Petitions.
20. The scale of pay of the petitioners who were appointed as Motor Mechanics was 825-15-900-20-1200 and that of the petitioners who were appointed as Assistant Motor Mechanic was 775-12-835-15- 1030 at the time of appointment.
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21. It is submitted that the petitioners who were appointed as Assistant Motor Mechanics with a pay scale of 775-12-835-15-1030 were later promoted on various dates between 1992 and 1993 as Motor Mechanics and their pay scale was also revised to 825-15-900-20-1200.
22. It is the specific case of the petitioners that their scale of pay was revied to 950-20-1150-25-1500 as per G.O.Ms.No.582, Finance (Pay Cell) Department, dated 01.08.1992.
23. It is further submitted that with the implantation of G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998, pay scales were revised as detailed below :-
Table No.8 Group Existing Scale Revised Scale (1) (2) (3) XXI 950-20-1150-25-1500 3050-75-3950-80-4590
24. G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 also introduced the Tamil Nadu Revised Scales of Pay Rules, ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 57 W.P.No.7307 of 2020 and etc. batch 1998. The above Rule was deemed to have come into force with effect from 01.01.1996. Thus, with effect from 01.01.1996, there was an upward revision of pay scale of these petitioners which entitled to them monetary benefit with retrospective effect.
25. G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 stipulated the following condition in paragraph No.4:-
“SELECTION GRADE AND SPECIAL GRADE SCALES OF PAY:
The selection Grade and Special Grade will be the corresponding revised scales based on the existing pay scales of these grades. The appropriate revised scales of pay for Selection Grade / Special Grade are indicated in Schedule-II to the Tamil Nadu Revised Scales of Pay Rules, 1998. Provided further, Selection Grade and Special Grade Scales shall be regulated as below:-
(i)For posts, having no promotional avenue, the Selection Grade and Special Grade shall be allowed as indicated in Schedule-II
(ii)For posts having promotional posts, if the Selection Grade Scale of pay indicated in the said Schedule is higher than the pay scale of promotional post, the Selection Grade scale should be limited to the pay scale of the first level promotion post. Similarly, if the Special ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 57 W.P.No.7307 of 2020 and etc. batch Grade Scale is higher than the pay scale of second level promotion post, the Special Grade Scale shall be limited to the pay scale of second level promotion post only.”
26. When G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 was issued, admittedly, the next promotion was to the post of “Head Mechanic” from the post of “Motor Mechanic”. It is however, the case of the petitioners that right from 1998, no promotions were made to the post of “Head Mechanic” and therefore, the petitioners were entitled to a differential treatment under Paragraph No.4 of G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 read with II Schedule.
27. Since the post of “Head Mechanic” existed in the year 1998, there was no necessity to resort to Schedule II to G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998. In 1998, the pay scales of the petitioners were thus to be revised at XXI to I Schedule as detailed above.
28. In the year 2009, the Government of Tamil Nadu revised the pay scale of all the Government Employees in Tamil Nadu on par with the Central Government Employees due to the implementation of the VI Pay Commission to Central Government Employees. ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 57 W.P.No.7307 of 2020 and etc. batch
29. Thus, G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 was issued. G.O.Ms.No.234 Finance (Pay Cell) Department dated 01.06.2009 also introduced the Tamil Nadu Revised Scales of Pay Rules, 2009 to implement the pay revisions announced. The above Rules were deemed to have notionally come into force on 01.01.2006 and with monetary benefit from 01.01.2007.
30. As per G.O.Ms.No.234 Finance (Pay Cell) Department dated 01.06.2009, the existing Selection Grade / Special Grade was to be continued in the revised pay scales to employees drawing Grade Pay from Rs.1,300/- to Rs.6,000/- and such employees were to be allotted to move to the Selection Grade on completion of 10 years of service in the Ordinary Grade Post and to the Special Grade on completion of 10 years in the Selection Grade Post or 20 years of total service in a post.
31. The post of such employees who moved to Selection Grade or Special Grade on or after 01.01.2006 was to be fixed on the date of the award of Selection Grade/ Special Grade by granting the benefit of one ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 57 W.P.No.7307 of 2020 and etc. batch increment equal to 3% of the basic pay including grade pay in the same Pay Band and Grade Pay and 3 & 4 of the aforesaid G.O. Relevant portion of the aforesaid G.O reads as under:-
3. PAY FIXATION : The pay of employees in the new pay scales shall be fixed with reference to the emoluments as on 1—1—2006, which shall comprise of (i) basic pay, (ii) dearness pay with reference to the basic pay + personal pay (if admissible) and (iii) dearness allowance with reference to the basic pay + dearness pay at index average 536 (1982 =100). The pay in the revised Pay Band / Pay scale shall be determined by multiplying the existing basic pay as on 1—1—2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
(a) The fixation of pay in the new pay scales shall be governed by the Tamil Nadu Revised Scales of Pay Rules, 2009.
(b) Appendix—I to this order gives the detailed fitment tables for various existing scales of pay based on the formula prescribed which is given in the Tamil Nadu Revised Scales of Pay Rules, 2009. There shall be no deviation from the fitment tables, wherever available, while fixing the pay in the revised pay scale. There are certain cases in which the pay of employees drawing personal pay cannot be fixed as per the fitment table. In such cases, employees pay shall be fixed according to the Rules provided therein. The pay fixing officer shall, after verifying the revised scale of pay and grade pay and the respective pay bands with ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 57 W.P.No.7307 of 2020 and etc. batch reference to the existing pay scale given in the Schedule—I to the Tamil Nadu Revised Scales of Pay Rules, 2009 refer either to the fitment table or to the illustrations given and fix the pay in the revised scale of pay and grade pay as applicable to the respective pay bands with reference to the stage in the existing scales of pay of the employees concerned.
(c) The next annual increment in the revised pay structure shall be due on the date normally due in the existing scale of pay in four quarters viz., January, April, July and October except in cases where the pay of a Government employee is stepped up due to junior getting more pay than senior for whom the next increment shall be on completion of one year of service from the date of such stepping up of pay.
(d) The annual increment shall be at the rate of three per cent of the pay + grade pay in the revised pay scales.
(e) The pay fixation statement relating to the Government employees in the Pay Band—3 and drawing pay in the scale of pay of Rs.15600— 39100 with Grade Pay of Rs.7,600/- and above shall be prepared by the Heads of Offices in the form given in Appendix—IV for onward transmission to the Accountant General, Chennai or the Pay and Accounts Officer or Treasury Officer as the case may be, for approval and issue of pay slips. In respect of other employees, the Heads of Offices shall fix the pay in the new pay scales without consultation of the Accountant General or the Pay and Accounts Officer or Treasury Officer and a copy of form of Appendix ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 57 W.P.No.7307 of 2020 and etc. batch —IV shall, however, be sent along with the pay bill for claiming the emoluments in the revised pay scales to the Treasury / Pay and Accounts Office for post-audit. The pay fixation statement in the form of Appendix—IV either as approved by the Accountant General / Pay and Accounts Officer / Treasury Officer or by the Heads of Offices shall be attached to the Service Book of the employees.
(f) The arrears accruing on account of pay revision for the period from 1—1—2007 to 31—05—2009 shall be arrived at as per Appendix – V and the Interim Arrears sanctioned in the Government Order fourth read above shall be adjusted and the balance net arrears due for payment shall be arrived. The balance arrears so arrived shall be paid in three equal annual instalments as shown below:-
i. 1st instalment in the year 2009—10 ii. 2nd instalment in the year 2010--11 iii. 3rd and final instalment in the year 2011— 12 All the Heads of Department / Head of Offices are directed to issue necessary instructions to all the Drawing and Disbursing Officers under their control to work out the Pay Revision Arrears forthwith based on the Proceedings / Orders issued by the Pay fixing Authorities duly fixing the pay of the employees in the revised scales of pay and make payment in the manner as ordered above. The Drawing Officers shall also open a separate Register for this purpose and make necessary entries of the total arrears amount payable to each individual employees duly indicating the amount to be paid in three equal annual instalments so as to claim the subsequent instalments without any ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 57 W.P.No.7307 of 2020 and etc. batch difficulty.
4. SELECTION GRADE AND SPECIAL GRADE SCALES OF PAY : The existing scheme of Selection Grade / Special Grade shall be continued in the revised pay scales to employees drawing the Grade Pay from Rs.1,300 to Rs.6,000/- and such employees shall be allowed to move to Selection Grade on completion of 10 years of service in the Ordinary Grade post and to Special Grade on completion of 10 years in the Selection Grade post or 20 years of total service in a post. The pay of such employees who have moved to Selection Grade / Special Grade on or after 1-1-2006 shall be fixed on the date of award of Selection Grade / Special Grade by granting the benefit of one increment equal to three per cent of the basic pay including grade pay in the same Pay Band and Grade Pay.
32. When G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 was announced, the petitioners were drawing at the Selection Grade of Pay as per G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998.
33. The revision of pay scale in G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 was to be with notional effect from 01.01.2006 and with monetary effect from 01.01.2007. This is clear from ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 57 W.P.No.7307 of 2020 and etc. batch a reading of the Tamil Nadu Government Refund Pay Scales of Rules, 2009. There was no difficulty in implementing the same.
34. Thus, these petitioners would have been eligible for revised pay scale with Grade Pay as per Sl.Nos.2 & 4 to the I Schedule of G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009. Sl.Nos.2, 4 & 5 to Schedule – I of the said G.O. read as under:-
Table No.9:-
Group Existing Scales of Pay Revised Pay Pay Band Grade Pay No. (1) (2) (3) (4) (5) Rs. Rs. Rs.
2. 2610-60-3150-65-3540* 4800-10000** PB 1A 1400
4. 2750-70-3800-75-4400* 5200-20200** PB 1 1800
5. 3050-75-3950-80-4590* 5200-20200** PB 1 1900 * (Revision as per Sl.No.XII and XXIV to the I Schedule to G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998) **(Revision as per G.O.Ms.No.582, Finance (Pay Cell) Department, dated 1.08.1992)
35. However, the pay scale of these petitioners was revised as per G.O.Ms.No.582, Finance (Pay Cell) Department, dated 1.08.1992 to Rs. 5200 - 20200 + 1900/-. Thus, these petitioners were entitled to pay ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 57 W.P.No.7307 of 2020 and etc. batch revision at Sl.No.5 to the above Schedule in G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009.
36. The post of these petitioners were re-designated as Skilled Assistant Grade-I and Skilled Assistant Grade-II later in terms of G.O.Ms.No.338, Finance (Pay Cell) Department, dated 26.08.2010 with a marginal increase in the Grade Pay as detailed below:-
Table No.11 :-
S.l. Name of the Posts Existing Scale of Pay Revised Scale of Pay No. + Grade Pay + Grade Pay Rs. Rs.
(1) (2) (3) (4)
1. Supervisory Posts in the pre-5200 – 20200 + 2800 9300 – 34800 + 4200 revised scale of pay of Rs.4500 – 7000 re-designated as Supervisor
2. Special Grade Trade Posts in 5200 – 20200 + 2600 5200 – 20200 + 2800 the pre-revised scale of pay of Rs.4300 – 6000 re-designated as Special Artisan
3. Grade-I (Promotion Posts) in 5200 – 20200 + 2400 5200 – 20200 + 2600 the pre-revised scale of pay of Rs.4000-6000 re-designated as Skilled Assistant Grade-I
4. Grade-II (entry level Posts) in 5200 – 20200 + 1900 5200 – 20200 + 2000 the pre-revised scale of pay of Rs.3050-4590 re-designated as Skilled Assistant Grade-II ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 57 W.P.No.7307 of 2020 and etc. batch
5. Other Trade Posts In the pre-revised scales of pay of Rs.2750 – 4400 5200 – 20200 + 1800* 5200 – 20200 + 1900 Rs.2650 – 4000 4800 – 10000 + 1650 Rs.2610 – 3540 4800 – 10000 + 1400 * Rs.2550 – 3200 4800 – 10000 + 1300 Re-designated as Unskilled
37. The petitioners could be designated as Skilled Assistant Grade II based on the existing pay scale. However, these petitioners were designated as Skilled Assistant Grade I & II respectively based on their qualification.
38. The Principal Secretary to Government of Tamil Nadu by letter dated 08.11.2010 bearing reference Letter No.63305/Pay Cell/2010-11 gave certain clarification during the implementation of G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 under the provisions of the Tamil Nadu Revised Scales of Pay, 2009. ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 57 W.P.No.7307 of 2020 and etc. batch
39. As mentioned above elsewhere in the beginning of this Order, the said letter led to confusion and payment of extra pay/ pension to these petitioners which is sought to be recovered by the respondents. Paragraph 4 of the above Letter which the cause of the confusion reads as under:-
“4) The above issue has been examined by Government in detail in the light of the orders issued in para-4 of Government Order second cited and the consequential revision made to the various categories in the Ordinary Grade scales of pay based on the One Man Commission recommendations and subsequent Government Orders. Accordingly, I am directed to issue the following guidelines for fixation of pay in the revised Selection Grade / Special Grade posts:
i. The revised Selection Grade / Special Grade scales of pay in the case of employees awarded Selection Grade / Special Grade prior to 1—1— 2006 and in whose cases the Ordinary Grade scales of pay have been revised based on the recommendations of One Man Commission / further order of Government thereon shall be fixed as per the scales of pay indicated in the Annexure – I to this letter following the same methodology of fixation of pay in the Selection Grade / Special Grade scales of pay of employees as was done in pre--2006 scales of pay as indicated in Appendix—II of G.O.Ms.No.162, Finance (PC) Department, dated: 13—4—98 subject to the same condition stipulated therein that if the revised Selection Grade / Special Grade scales of pay indicated in the Annexure-I ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 57 W.P.No.7307 of 2020 and etc. batch happens to be higher than the first level / second level promotion posts, then in such cases only the revised Selection Grade / Special Grade scales of pay should be restricted to the level of their first level and second level promotional posts respectively.
ii. The above revised Selection Grade / Special Grade scales of pay indicated in the Annexure –I to this letter shall be confined only to the employees who were awarded Selection Grade / Special Grade prior to 1—1—2006 and in the case of employees who have exercised their option to come over to the revised scales of pay on the date of their award of Selection Grade / Special Grade between 1—1—2006 and 31—5—2009, ( prior to the issue of G.O. Ms. No. 234, Finance (Pay Cell) Department, dated: 1—6—2009.
iii. The revised Selection Grade / Special Grade scales of pay indicated in Annexure –I to this letter is admissible only in cases where the scales of pay of the Ordinary Grade posts were revised based on the recommendations of the One Man Commission and subsequent Government Orders.
iv. The above revised Selection Grade / Special Grade scales of pay is not applicable to the employees moving to Selection Grade / Special Grade posts on or after 1—6—2009 since these employees are awarded Selection Grade / Special Grade directly in the revised scales of pay and therefore entitled for one increment benefit equal to 3% of basic pay plus grade pay on the date of award of Selection Grade / Special Grade as ordered in para-4 of G.O.Ms.No.234, Finance (PC) Department, dated: 1—6—2009.” ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 57 W.P.No.7307 of 2020 and etc. batch
40. The above clarification could have been issued only in the exercise of the power conferred under Rule 12 of the Tamil Nadu Revised Scales of Pay Rules, 2009. The exercise of power under Rule 12 of the above Rules can be only to remove the difficulty that may have arisen while giving effect to the provisions of the Tamil Nadu Revised Scales of Pay Rules, 2009.
41. However, the above clarification was given. It altered the method of re-determination of the pay-scale. It introduced an amendment to the Tamil Nadu Revised Scales of Pay Rules, 2009 introduced vide G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 though the power to amend the above Rules was only vested with the Government under Rule 13 of the above Rules. Both Rule 12 and 13 to the above Rules are reproduced below:-
Rule 12: Power to Rule 13. Power to amend the rules remove difficulties:
The Government may, 1. The Government may, by order, by order, remove any amend the Rules. difficulty that may arise 2. All references made in these ______________ https://www.mhc.tn.gov.in/judis Page No 24 of 57 W.P.No.7307 of 2020 and etc. batch in giving effect to the Rules shall be considered as provisions of these relating to the rules as amended Rules” from time to time in exercise of the powers conferred by these Rules.
42. Para 4(i) of Letter No.63305 / Pay Cell / 2010-2011 of the then Principal Secretary is itself not free from confusion. If it is dissected, it can be read in three parts as follows:-
Person for whom this Fixation of the Scale of Subject to the condition Clarification was Pay: that:
intended:
1. In the case of 1. Their shall be 1. If the revised those fixed as per the Selection Grade / employees scales of pay Special Grade awarded indicated in the scales of pay Selection Annexure – I to indicated in the Grade / the letter. Annexure-I Special Grade happens to be prior to higher than the 1.1.2006; first level/ second level promotion posts,
2. By following the same 2. Then in such
2. In whose methodology of cases only the cases the fixation of pay in revised Selection Ordinary the Selection Grade / Special Grade scales Grade/ Special Grade scales of of pay were Grade scales of pay should be revised based pay of employees restricted to the on the as was done in level of their first ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 57 W.P.No.7307 of 2020 and etc. batch recommendati pre--2006 scales level and second ons of One of pay as level promotional Man indicated in posts respectively.
Commission/f Appendix—II of
urther order G.O.Ms.No.162,
of Finance (PC)
Government Department,
thereon. dated: 13.4.98.
43. Letter No.63305 / Pay Cell / 2010-2011 of the then Principal Secretary was not intended to confer any special benefit on the petitioners. It also could not have amended the Rules. It was intended to remove any pay anomaly which may have arisen during the implementation of Tamil Nadu Revised Scales of Pay Rules, 2009.
44. Therefore, the point for consideration in these Writ Petitions are follows:-
i. Whether the benefit given to the petitioners hitherto on the strength of clarification given by the then Principal Secretary vide letter dated 08.11.2010 bearing reference Letter No.63305 / Pay Cell / 2010-11 was correct or not?
ii. If not, whether the respondents can recover the ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 57 W.P.No.7307 of 2020 and etc. batch amounts from these petitioners? or iii. Whether the petitioner in W.P.No.10277 of 2020 who was not given the benefit of interpretation letter of the Principal Secretary in Letter No.63305 / Pay Cell / 2010-11, dated 08.11.2010 is entitled for similar enhancement as in the case of other petitioners?
45. It must also be recalled that when G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 was issued, the petitioners were in the Ordinary Grade of Pay of Rs.950-20-1150-1500.
46. The petitioners became eligible for the Selection Grade of Pay much later after a lapse of two years with effect from 01.01.2001.With the implementation of G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 and Tamil Nadu Revised Scales of Pay Rules, 2009, their pay was to be revised as per the Annexure appended to it.
47. On the other hand, Appendix-II of G.O.Ms.No.162, Finance ______________ https://www.mhc.tn.gov.in/judis Page No 27 of 57 W.P.No.7307 of 2020 and etc. batch (Pay Cell) Department, dated 13.04.1998 was applicable only for posts having no promotional avenue. Only under those circumstances, the Selection Grade and Special Grade was to be re-fixed as indicated in Schedule-II.
48. For posts having promotional posts, if the Selection Grade Scale of pay indicated in the said Schedule was higher than the pay scale of promotional post, the Selection Grade scale was to be limited to the pay scale of the first level promotion post. Similarly, if the Special Grade Scale is higher than the pay scale of second level promotion post, the Special Grade Scale was to be limited to the pay scale of second level promotion post only.
49. Admittedly, when G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 was implemented, the promotional post of a “Head Mechanic” existed. It had not yet been surrendered.
50. The communications and records indicate that it was ______________ https://www.mhc.tn.gov.in/judis Page No 28 of 57 W.P.No.7307 of 2020 and etc. batch surrendered in 2012. The case of the petitioners is that since 1998, there was no promotion to the post of “Head Mechanic”.
51. The clarification in Letter No.63305 / Pay Cell / 2010-2011 dated 08.11.2010 of the then Principal Secretary was intended to remove pay anomaly. Thus, if a person was getting higher Selection Grade or Special Grade Pay than a person at the promotional post, such higher pay in the Selection Grade or the Special Grade was to be restricted to the level of the first level or second level post respectively.
52. In other words, if the post of “Head Mechanic” existed and if such a person was to get a lesser pay than a person junior to him, then the junior's pay in the Selection Grade was to be restricted to the scale of pay drawn by the “Head Motor Mechanic”. This clarification was intended to only ensure that there was no pay anomaly between the persons holding lower post and those holding higher post. It was not intended to confer any benefits on the petitioners.
53. Further, when Letter No.63305 / Pay Cell / 2010-2011 on ______________ https://www.mhc.tn.gov.in/judis Page No 29 of 57 W.P.No.7307 of 2020 and etc. batch 08.11.2010 was issued by the then Principal Secretary, there was no scope for applying the interpretation of Appendix—II of G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 for revising the Pay Scales of the petitioners based on their own admission.
54. A reading of the Paragraph 4 of Letter dated 08.11.2010 bearing reference Letter No.63305 / Pay Cell / 2010-2011 of the then Principal Secretary indicates that the intention of the Government to remove any anomaly in the pay fixation. It was not intended to confer any additional benefit.
55. In fact, Letter No.63305 / Pay Cell / 2010-2011 of the then Principal Secretary dated 08.11.2010 could not have amended the Rules. As such, the aforesaid Letter dated 08.11.2010 cannot amend either the G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 or the Rules announced therein.
56. Therefore, at the time of implementation of G.O.Ms.No.234, ______________ https://www.mhc.tn.gov.in/judis Page No 30 of 57 W.P.No.7307 of 2020 and etc. batch Finance (Pay Cell) Department, dated 01.06.2009 (notionally with effect from 01.01.2006 and with monetary effect from 1.1.2007), the Selection Grade of Pay conferred under G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 could not have been treated as Ordinary Grade of Pay to refix the Selection Grade of Pay. This is because, admittedly an avenue for promotion to the post of “Head Mechanic” still existed as on 01.06.2009 for the petitioners and the said post had not been surrendered as on that date.
57. The revision in the Selection Grade in 2009 with retrospective effect from 01.01.2006/01.01.2007 as per G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 by treating same as “Ordinary Grade of Pay” for re-determining the Selection Grade once again during the implementation of G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 was also not permissible. However, that is how the respondents fixed the Pay Scale of these petitioners.
58. The above clarification in Letter dated 08.11.2010 bearing reference Letter No.63305 / Pay Cell / 2010-11 of the then Principle ______________ https://www.mhc.tn.gov.in/judis Page No 31 of 57 W.P.No.7307 of 2020 and etc. batch Secretary to Government was mis-interpreted by the respective Finance Departments in many of the Departments of Government of Tamil Nadu including the Finance Department of the respondents Chennai Corporation which has resulted in cascading effect. The revenue expenditure of the Government increased due to periodical increments being given to these petitioners.
59. This was not intended. However, it was granted not on account of the petitioners' fault but on account of the erroneous interpretation in the clarification given in Letter dated 08.11.2010 of the then Principle to Secretary Government of Tamil Nadu vide Letter No.63305 / Pay Cell / 2010-2011 by applying content of the G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 to G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009.
60. The petitioners were thus given the Selection Grade of Rs.9300 – 34800 + 4200/- at Sl.No.8 when indeed the petitioners would have been entitled to Selection Grade of Rs.5200-20200+2400/- at Sl.No.5.
______________ https://www.mhc.tn.gov.in/judis Page No 32 of 57 W.P.No.7307 of 2020 and etc. batch
61. The petitioners were actually entitled to only the Selection Grade at Sl.No.5 to G.O.Ms.No.338, Finance (Pay Cell) Department, dated 26.08.2010. Relevant portion from the Annexure 1 to G.O.Ms.No.338, Finance (Pay Cell) Department, dated 26.08.2010 is reproduced below:-
Table No.12 Sl. Ordinary Grade Selection Grade Special Grade No. Rs. Rs. Rs.
4 5200 - 20200 + 1800 5200 – 20200 +1900 5200 – 20200 + 2000 5 5200 - 20200 + 1900 5200 – 20200 + 2400 5200 – 20200 + 2600 8 5200 - 20200 + 2400 9300 – 34800 + 4200 9300 – 34800 + 4400
62. In fact, G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 and G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009 which implemented the V and VI Pay Commission respectively constitute a separate code by themselves.
63. There was no scope for nixing the conditions of ______________ https://www.mhc.tn.gov.in/judis Page No 33 of 57 W.P.No.7307 of 2020 and etc. batch G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998 into the latter either to interpret or to remove any difficulties in the implementation of Rules in terms of G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009.
64. However, as mentioned above, the respondents themselves were the authors of the confusion. This interpretation was not only followed by the respondents corporation but also in several other departments.
65. This was brought to the knowledge of the Finance Department by the Joint Director of Local Audit Department of the Chennai Corporation as early as 2013 vide Letter dated 11.12.2013. It was stated as follows:-
Tamil English
,e;epfH;tpy; nkw;Twpa fhuzpfspd; In view of the above reasons, it
mog;gilapy; bjhHpyE ; l;g gapw;rp bgw;W is informed that the
0/01/2006f;F Kd;dh; njh;t[ epiybgw;w Government Order have been
passed for fixation of pay in the
gzpahsh;fSf;F 9300-34800 + 4200
revised Selection Grade Pay of
juCjpak; juyhk; vd nkny Fwpgg; pll; 9300-34800 + 4200 in respect
murhizfspd; K:yk; tHptif of technical employees who
bra;ag;gl;Ls;sJ vd;w tptuk; bjhptpj;Jf; were in the Selection Grade /
bfhs;sg;gLfpwJ/ nkYk; jpUj;jg;gl;l Special Grade prior to
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W.P.No.7307 of 2020 and etc. batch
njh;te[ piy Cjpak; gzpahsh;fspd; Kjy; 01.01.2006; and that the
epiy. ,uz;lhk; epiy gjtp cah;t[ Cjpa revised Selection Grade /
tpfpjj;jpwF; kpifahf ,Ug;gpd; jpUj;jg;gl;l Special Grade of pay should be
njh;te[ piy Cjpa tpfpjj;jpw;F kpifahf restricted to the level of their
,Ug;gpd; jpUj;jg;gl;l njh;te[ piy Cjpak; first level and second level
promotional posts respectively.
Kjy; epiy. ,uz;lhk; epiy gjtpcah;t[
Cjpa tpfpjj;Jf;F fl;Lg;gLj;jg;gl
ntz;Lk; vdt[k; bjhptpjJ
; f;
bfhs;sg;gLfpwJ/
66. Despite the above, the respondents themselves condoned the mistake and thus these petitioners (other than the Writ Petitioner in W.P.No.10277 of 2020) continued to get higher pay for no fault of time.
67. They also continued to get periodical increments in their pay which no doubt had a cascading effect on the revenue outflow of the respondents Corporation and the Government. In fact, it was sought to be justified.
68. The Superintendent Engineer vide Communication dated 14.06.2018 bearing reference No.E.Po.Thu.Na.Ka.No.M/7/1370/18 to the Joint Director of Local Fund requested to avoid any steps to order recovery. In the said letter, it was also stated that few others were already ______________ https://www.mhc.tn.gov.in/judis Page No 35 of 57 W.P.No.7307 of 2020 and etc. batch getting similar benefit. Relevant portion from the said letter reads as follows:-
Tamil English
...... ,ae;jpug; nghwpapay; Jiwapy; Since the promotional post of Head
gad;ghl;bYs;s ,ae;jpu gOjhsH Motor Mechanic in the Mechanical
gjtpf;F gjtp caHT gjtpahd
jiyik ,ae;jpu gOjhsH gjtp muR Engineering Department has been
Miz epiy vz;.98> efuhl;rp surrendered vide G.O.Ms.No.98,
epHthfk; kw;Wk; FbePH toq;fy; Jiw Municipal Administration and Water
(MC3) ehs;.14.10.2012 Supply (MC3) Department, dated
xg;gilf;fg;gl;Ls;sjhy; ,ae;jpu 14.10.2012, the post of Motor
gOjhsu; gjtpf;F gjtp caHT Mechanic has no promotion. Further, it
,y;iy. NkYk;> Ml;Nlh nkhigy;
is informed that the posts of
vyf;l;uPrpad; / taHNkd;> thu;dp\;nkd;> kp\pd; ikd;lu;> fyu; gpupd;lu;> igd;lu;> Automobile Electrician/Wireman, ngd;&yu;> Nyau; Md;> lau;Nkd;> g;shf; Warnishman Machine Minder, Colour ];kpj; Mfpa gjtpfSf;Fk; gjtp Printer, Binder, Penruler, Layeron, cau;T ,y;iy vd;gij njuptpj;Jf; Tyreman and Blacksmith had also no nfhs;sg;gLfpwJ. promotion.
vdNt> Nkw;Fwpg;gpl;l gjtpfSf;F
gjtp cau;T ,y;iy vd;gjhy;>
muRfbj vz;.63305 / (Cjpaf;FO) / Thus, since there was no promotion
2010 Jiw> ehs; 26.10.2010d;gb to the above posts, it is requested to
Nju;Tepiy kw;Wk; rpwg;G epiy Cjpa avoid for recovery of excess amount
tpfpjq;fis kW epu;azk; nra;ag;gl;L from Death cum Retirement Gratuity of
Cjpak; ngw;WtUk; jw;NghJ
Xa;TngWk; gzpahsu;fspd; the employees being now retired which
gzpf;nfhilapypUe;J kpifj; njhif was paid to them after determining the
toq;fpAs;sjhf gpbj;jk; nra;tij Selection Grade Pay and Special Grade
jtph;fF
; khW fdpTld; Nfl;Lf; Pay as per the Government Letter
nfhs;sg;gLfpwJ. No.63305/(Pay Cell)/2010 Department,
dated 26.08.2010.
69. The Principal Secretary to the Commissioner of Municipality Administration, vide Letter No.22797/Na.Pa.3/2017-4 dated 13.08.2018 (one of the respondent in these cases), while dealing with the case of the Wiremen who did not have promotional avenue in the respondents ______________ https://www.mhc.tn.gov.in/judis Page No 36 of 57 W.P.No.7307 of 2020 and etc. batch Corporation, clarified as under:-
3. ghu;it 4-y; fhZk; efuhl;rp 3.In the 4 th cited letter, the eph;thf Mizahpd; fbjj;jpy;> Commissioner of the Municipal kpd;fk;gp cjtpahsH gzpaplq;fs;
gjtp caHT ,d;wp xNu gjtpapy; Administration has requested the gzpGhpe;J tUtjhy; NjHTepiy / Government to pass appropriate rpwg;Gepiy Cjpak; toq;FkhW order on the requestion made in the ghHit %d;wpy; fhZk; fbjj;jpy; 3rd cited Letter to confer Selection Nfhhpa Nfhhpf;ifapd; kPJ chpa Grade / Special Grade of Pay to the cj;juT mspj;jpLkhW muirf; post of Wiremen working in the NfhhpAs;shH.
Municipal Corporation as they were
4. efuhl;rpapy; gzpGhpAk; kpd;fk;gp working in the same designation cjtpahsH gzpaplj;jpw;F 24.06.2008 without promotion. tiu gjtp caHT gzpaplk; VJk;
,y;yhj fhuzj;jpdhy;> mg;gzpaplj;jpw;F 01.01.2006-f;F 4. Since there was no avenue for Kd;dNu NjHTepiy / rpwg;Gepiy promotion to the post of Wiremen in mile;jtHfs; my;yJ 01.01.2006 the Municpal Corporation till Kjy; 24.06.2008 tiuAs;s 24.06.2006, the Government ,ilg;gl;l fhyj;jpy; kpd;fk;gp accepting the determination of pay cjtpahsH gzpaplj;jpy; NjHTepiy scale as per the Tamil Nadu Revised / rpwg;Gepiy mile;J> me;ehs;
Scales of Pay Rules, 2009 from the Kjy; (i.e. from the date of award of date of award of Selection Grade Selection Grade) jkpo;ehL jpUj;jpa Cjpa tpfpj tpjpfs; 2009-d; gb has advised to confer the pay scale Cjpa epHzak; nra;a tpUg;gk; as per the Letter No.63305 / Pay njhptpj;J jw;NghJ gzpapy; cs;s Cell / 2010-2011, dated 08.11.2010 kpd;fk;gp cjtpahsHfsH Cjpa without restricting to the pay tpfpjj;jpid gjtp caHT scale of promotional post to the gzpaplj;jpw;fhd Cjpa tpfpjj;jpw;F fl;Lg;gLj;jhky; muR fbj vz; Wirmen who reached the 63305/C.gp. /2010-1> ehs; 08.11.2010-d; Selection Grade / Special Grade gb NjHTepiy / rpwg;Gepiy Cjpa prior to 01.01.2006 or during the tpfjj;jpid toq;fyhk; vd period between 01.01.2006 and mwpTWj;jg;gLfpwJ. 24.06.2008.
5. ,f;fbjk; epjpJiwapd;
5. This letter is published with m.rh.vz;.7145/CMPC/PC3/2018, ehs;
02.06.2018-y; ngwg;gl;l xg;GjYld; approval got in Letter
ntspaplg;gLfpwJ. No.7145/CMPC/PC3/2008 of the
Finance Department, dated
02.06.2018.
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70. Thus, the Principal Secretary to the Commissioner of Municipality Administration vide Letter No.22797/Na.Pa.3/2017-4 dated 13.08.2018 has accepted the position and also obtained approval of Finance Department, dated 02.06.2018 in Govt. Letter. No. 7145/ CMPC/ PC3 /2008. However, in the case of the petitioners, this was not done.
71. Meanwhile, the Commissioner of Greater Chennai Corporation addressed a letter dated 16.10.2018 to the Additional Chief Secretary (Pay Cell) Department and sought for clarification as far as the petitioners. By a letter dated 18.02.2020, the then Additional Chief Secretary in response to letter dated 16.10.2018 of the Commissioner of Greater Chennai Corporation also clarified as follows:-
Tamil English
4.,e;epiyapy;> Nkw;fhZk; 4. In this situation, regarding jq;fsJ nraw;Fwpg;G njhlHghf> your above letter, it is informed ngUefu nrd;id khefuhl;rp> ,ae;jpu nghwpapay; Jiwapy; that since the promotional post of gzpGhpAk; jpwd;kpF cjtpahsH Head Motor Mechanic for the epiy-2-,d; fPo; tUk; Nkhl;lhH post of Motor Mechanic which nkf;fhdpf; gjtpf;F gjtp comes under post of Skilled caHTgjtpahd jiyik Nkhl;lhH Assistants Grade-II in the nkf;fhdpf; gjtpfis 2012-,y; jhd;
murpw;F xg;gilg;G Mechanical Engineering nra;ag;gl;Ls;sjhy;> mjw;F Ke;ija Department in Greater Chennai ______________ https://www.mhc.tn.gov.in/judis Page No 38 of 57 W.P.No.7307 of 2020 and etc. batch fhyj;jpy; muRf; fbj vz;.63305> Corporation was surrendered to epjpj;Jiw> ehs; 08.11.2010-,d;gb> the Government only in the year 01.01.2006-f;F Kd;dH 2012, before that period, based on NjHTepiy/rpwg;Gepiy ngw;wtHfSf;Fk; kw;Wk; 01.01.2006 the fact that Selection Grade / Kjy; 31.05.2009 tiuapyhd Special Grade has to be restricted fhyq;fspy; NjHTepiy/ rpwg;Gepiy to the first level / second level ngw;W me;ehspy; jpUj;jpa Cjpa respectively while determining the tpfpjj;jpy; Cjpa epHzak; nra;a Selection Grade / Special Grade tpUg;gk; njhptpf;Fk; of those who have received the gzpahsHfSf;Fk; Nkw;gb muRf;
fbjj;jpy; njhptpf;fg;gl;Ls;sthW Selection Grade before Cjpa epHzak; nra;Ak; nghOJ 01.01.2006 and those who have NjHTepiy/rpwg;Gepiy Cjpa received Selection Grade / Special tpfpjj;jpid KiwNa Kjy; epiy/ Grade during period between ,uz;lhk; epiy gjtp caHT 01.01.2006 and 31.05.2009 and gjtpf;F kl;Lg;gLj;jp Cjpa epHzak; accepted for determination of nra;ag;glNtz;Lk; vd;gjd;
mbg;gilapy;> NkNy $wg;gl;Ls;s revised pay scale as per Govt.
jpwd;kpF cjtpahsH epiy- 2 Letter No.63305, Finance
gjtpf;fhd NjHTepiy Cjpa Department, dated 08.11.2010,
tpfpjj;jpid mLj;j gjtp caHT Selection Grade of the Skilled
gjtpahd jpwd;kpF cjtpahsH
epiy-1 gjtpapd; Cjpa tpfpjkhd Assistant Grade – 2 has to be
&.5200-20200 + juCjpak; &.2600/-f;F restricted to the pay of Rs.5200-
kl;Lg;gLj;jp Cjpa epHzak; 20200 + 2600/- of the Skilled
nra;ag;gl Ntz;Lk; vd;Wk; 01.01.2006 Assistant Grade -1 and it is not
md;W jpwd;kpF cjtpahsH epiy-2 possible to determine the
gjtpf;F NjHT epiyapy; &.9300-34800 Selection Grade of Rs.9300-
+ juCjpak; &.4200/- vd;w Cjpa 34800 + 4200/- of Skilled
tpfpjj;jpy; epHzak; nra;tjw;F
toptif ,y;iy vd;w tptuk; Assistant Grade – 2 as on
njhptpj;Jf; nfhs;sg; 01.01.2006.
gzpf;fgl;Ls;Nsd;.
72. Fact remains that Motor Mechanic/Assistant Motor Mechanic who were to be re-designated as Skilled Assistant Grade I and Skilled Assistant Grade II and were placed in the higher pay band. There was no avenue for promotion for them. For the past five years which is almost the entire period when most of these petitioners were in the Selection Grade ______________ https://www.mhc.tn.gov.in/judis Page No 39 of 57 W.P.No.7307 of 2020 and etc. batch also, there was no avenue for promotion.
73. In the context of Education Department, as early as 1993, the Government of Tamil Nadu in G.O.Ms.No.216, Finance (Pay Cell) Department, dated 22.03.1993 extended benefits. Relevant portion to the Office Assistants and Secondary Grade Teacher in G.O.Ms.No.216, Finance (Pay Cell) Department, dated 22.03.1993 reads as under:-
ORDER :
In the Government Order second read above, orders were issued reintroducing Selection Grade and Special Grade with improved scales of pay. It has also been ordered that the Selection Grade should be restricted to the promotion post scale of pay. Accordingly, the Selection Grade scale of pay for Office Assistants has been restricted to Rs.775-- 1030, the pay scale of their promotion post, viz., Record Clerk.
2. In its judgement delivered, the Tamil Nadu Administrative Tribunal in O.A.No.1625 of 91 filed by Tamil Nadu Government Office Assistants' and Basic Servants' Association, has observed that the post of Record Clerk is not an avenue of promotion for Office Assistants for the reason that only persons with the prescribed qualification are appointed by transfer to the post of Record Clerk.
Hence, the Tribunal bas ordered that the proviso to Para. 4 of the G.O.Ms.No.304, Finance (PC) ______________ https://www.mhc.tn.gov.in/judis Page No 40 of 57 W.P.No.7307 of 2020 and etc. batch Department, dated 28.3.90 will not be applicable to Office Assistants. The Tribunal has also pointed out the special dispensation shown to the Teachers in the matter of Selection Grade. The Tribunal has, therefore, set aside the entire para. 4 of the Government Order second read above and ordered that, it is open to Government to issue orders afresh by suitably incorporating the basis that, Selection Grade for a post cannot be higher than that of the promotion post so as not to leave room for any ambiguity and to provide for special cases when appointment to higher post in the hierarchy in the department is not by promotion but by transfer. Accordingly, orders were issued in the Government Order fifth read above, revising the existing Para.4 of the Government Order second read above.
3. The above directions of Tribunal has been examined by the Government and it has been decided to issue the following orders to protect certain special categories in the matter of awarding Selection Grade:-
i. Government accept the direction of the Tribunal that the post of Record Clerk is not a regular promotion post for the office Assistants for the reason that only persons with the prescribed qualification are appointed to the post of Record Clerk by transfer. Accordingly, government direct that the proviso to Para. 4 of the Government Order second read above as modified in G.O fifth read above shall not be applicable to the post of Office Assistants and they shall be allowed Selection/Special Grades as in Annexure - I to the Government Order second read above; and ______________ https://www.mhc.tn.gov.in/judis Page No 41 of 57 W.P.No.7307 of 2020 and etc. batch ii. In respect of Secondary Grade Teachers in High Schools there is no promotion post for them as on 28.3.90 (ie., the date of issue of the G.O. second read above), although there is promotion post in Primary Schools. As a measure of uniformity in respect of all Secondary Grade Teachers, Government direct that the Teachers be made eligible for Selection/Special Grades as in Annexure-I to the G.O.second read above.
74. Letter dated 8.11.2010 bearing Reference No.63305/Pay Cell/2010-1, dated 08.11.2010 issued by the then Principal Secretary to Government of Tamil Nadu appears to be inspired from G.O.Ms.No.216, Finance (Pay Cell) Department, dated 22.03.1993.
75. In G.O.Ms.No.114, Finance (Pay Cell) Department, dated 06.05.2014, the decision to implement the revision in the pay scale, allowances and etc. was made following the above clarification of the Principal Secretary in his letter dated 08.11.2010 bearing Reference No.63305/Pay Cell/2010-1, for Drivers in various Departments. Relevant portion reads as under:-
SELECTION GRADE AND SPECIAL GRADE ______________ https://www.mhc.tn.gov.in/judis Page No 42 of 57 W.P.No.7307 of 2020 and etc. batch SCALES OF PAY:
4. The Selection Grade and Special Grade will be the corresponding revised scales based on the existing pay scales of these grades. The appropriate revised scales of pay for Selection Grade / Special Grade are indicated in Schedule – II to the Tamil Nadu Revised Scales of Pay Rules, 1998. Provided further, Selection Grade and Special Grade scales shall be regulated as below:-
i. For posts, having no promotional avenue, the Selection Grade and Special Grade shall be allowed as indicated in Schedule – II.
ii. For posts, having promotional posts, if the Selection Grade scale of pay indicated in the said Schedule is higher than the pay scale of promotional post, then in such cases, the Selection Grade / Special Grade scales of pay should be limited to the pay scales of the first level / second level promotional posts respectively.
The existing procedure for movement to Selection Grade / Special Grade and fixation of pay in these grades shall continue without any change.
7) In the light of the above revised orders, the applicable Ordinary Grade, Selection Grade and Special Grade scales of pay of Drivers shall be regulated as follows:-
i. The Ordinary Grade scale of pay of Drivers with effect from 1-6-88 under Common Category is Rs.950-1500 as against the pre-revised scale of pay of Rs.610-1075 (vide-G.O.Ms.No.666, Finance (PC) Department, dated: 27-6-89).
______________ https://www.mhc.tn.gov.in/judis Page No 43 of 57 W.P.No.7307 of 2020 and etc. batch Subsequently, the Ordinary Grade scale of pay of Driver was revised from Rs.950-1500 to Rs.975- 1660 with effect from 1-6-88 (vide-G.O.Ms.No.818, Finance (PC) Department dated: 09-8-89) ii. As per Schedule-I of G.O.Ms.No. 162, Finance (PC) Department, dated: 13-4-98 the corresponding revised scale of pay of Driver with effect from 1-1-96 is Rs.3200-4900 as against the pre-revised scale of pay of Rs.975--1660 as mentioned in Group-XX therein.
iii. As per Schedule-Il of G.O. Ms. No.162, Finance (PC) Department, dated: 13-4-98 the Ordinary Grade, Selection Grade and Special Grade scales of pay is as follows:--
Sl. Ordinary Grade Selection Grade Special Grade No. Rs. Rs. Rs.
6. 3200-85-4900 4000-100-6000 4300-100- 6000
76. Similar benefit has been conferred also in the context of vocational instructors vide G.O.Ms.No.306, Finance (CPMC) Department, dated 12.09.2018.
77. Similar re-fixation for several other employees of the government were not only fixed but also suitable Government Orders ______________ https://www.mhc.tn.gov.in/judis Page No 44 of 57 W.P.No.7307 of 2020 and etc. batch have been obtained. However, in the case of petitioners, this has not been done.
78. Though a guideline in G.O.Ms.No.286, dated 28.08.2018 has been issued to implement the decision of the Hon'ble Supreme Court in State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 : 2015 SCC OnLine SC 1027 for recovery, the fact also remains that these petitioners are Class IV employees.
79. The Hon’ble Supreme Court in the State of Punjab and others Vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334, referred to supra held that recovery cannot be made for the mistakes committed by the Department while sanctioning excess amount in the past. In paragraph No.18, the Hon’ble Supreme Court held as under:-
18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, ______________ https://www.mhc.tn.gov.in/judis Page No 45 of 57 W.P.No.7307 of 2020 and etc. batch would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
80. The petitioners are Class-III/Class-IV employees as per the Tamil Nadu Conduct Rules and later as per revised Classification-4 in the Tamil Nadu Conditions Service Rules Government Act, 2016. Therefore, recovery cannot be justified.
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81. Most of the petitioners are due for retirement in few years while some have already retired before filing of these Writ Petition. One of the petitioners has also died. In Para 5 of G.O.Ms.No.286, Finance (Pension) Department, dated 28.08.2018, it has been clarified as under:-
5. The Government further directs that wherever the waiver of recovery in the above-mentioned situations is considered, the waiver of recovery will be allowed by the Administrative Department in Secretariat with the express approval of Finance Department.
82. In the present case, the root cause of the confusion is on account of the clarification of the then Principal Secretary vide letter dated 08.11.2010 bearing Reference No.63305/Pay Cell/2010-1. Though in G.O.Ms.No.286, Finance (Pension) Department, dated 28.08.2018, liability is sought to be fixed on the officers at the lower level, the mistake is on account of the confusing clarification given by the then Principal Secretary vide letter dated 08.11.2010 bearing Reference No.63305/Pay Cell/2010-1. These mistakes have been condoned in the case of few other class of government employees.
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83. While dealing with an identical situation, the Madurai Bench of this Court in W.P.(MD) No.12104 of 2017 vide order dated 20.12.2017, held as follows:-
"6. It is not in dispute that the petitioner was awarded Selection Grade as on 26.04.2003 and the scale of pay was revised to Rs.4000-100-6000 as per the Tamil Nadu Revised Pay Scale Rules, 1998, the pay for Selection Grade Junior Assistant is as above. However, the Government while issuing G.O.Ms.No.234, dated 01.06.2009, the Tamil Nadu Revised Pay Scale Rules, 2009 was introduced with effect from 01.01.2006 notionally and with monetary benefits from 01.01.2007. As per the said Rules, the pay scale for Junior Assistant was re- fixed as Rs.5200-20200 with Grade Pay of Rs.2400- . Further, the Government by letter, dated 08.11.2010, re-fixed the pay of Selection Grade as Rs.9300- 34800+4200 Grade Pay, for those employees whose pay scale was fixed at Rs.5200- 20200+2400 Grade Pay i.e. by Government Letter, dated 08.11.2010 and increased the Grade Pay Rs.2,400/- to Rs.4,200/-.
7. It could be seen from the above letter, dated 08.11.2010, in paragraph No.4 and the same reads as follows:
"4. The above issue has been examined by Government in detail in the light of the orders issued in para-4 of Government Order second cited and the consequential revision made to the various categories in the Ordinary Grade scales of pay based on the One Man Commission recommendations and subsequent Government Orders. Accordingly, I am directed to issue the following guidelines for ______________ https://www.mhc.tn.gov.in/judis Page No 48 of 57 W.P.No.7307 of 2020 and etc. batch fixation of pay in the revised Selection Grade / Special Grade posts:
i) The revised Selection Grade / Special Grade scales of pay in the case of employees awarded Selection Grade / Special Grade prior to 1—1—2006 and in whose cases the Ordinary Grade scales of pay have been revised based on the recommendations of One Man Commission / further order of Government thereon shall be fixed as per the scales of pay indicated in the Annexure–I to this letter following the same methodology of fixation of pay in the Selection Grade / Special Grade scales of pay of employees as was done in pre--2006 scales of pay as indicated in Appendix—II of G.O.Ms.No.162, Finance (PC) Department, dated: 13—4—98 subject to the same condition stipulated therein that if the revised Selection Grade / Special Grade scales of pay indicated in the Annexure-I happens to be higher than the first level / second level promotion posts, then in such cases, only the revised Selection Grade / Special Grade scales of pay should be restricted to the level of their first level and second level promotional posts respectively.
ii) The above revised Selection Grade / Special Grade scales of pay indicated in the Annexure–I to this letter shall be confined only to the employees who were awarded Selection Grade / Special Grade prior to 1—1— 2006 and in the case of employees who have exercised their option to come over to the revised scales of pay on the date of their award of Selection Grade / Special Grade ______________ https://www.mhc.tn.gov.in/judis Page No 49 of 57 W.P.No.7307 of 2020 and etc. batch between 1—1—2006 and 31—5—2009, ( prior to the issue of G.O.Ms.No.234, Finance (Pay Cell) Department, dated: 1—6—2009)."
8. On a plain reading of the above stated instructions, it is clear that the Government has intended to increase the Grade Pay of those employees, who were awarded Selection Grade Pay prior to 01.01.2006. As per the admitted fact, the petitioner was awarded Selection Grade on 26.04.2003, as such, following G.O.Ms.No.234, dated 01.06.2009, the Tamil Nadu Revised Pay Scale Rules 2009 came into effect from 01.01.2006 notionally and with monetary benefits from 01.01.2007 and the Pay Scale for Junior Assistant was re-fixed as Rs.5200-20200-2400 Grade Pay and thereafter, the Government in letter dated 08.11.2010 categorically cleared that the re-fixing of pay for Selection Grade was Rs.9300- 34800+4200 Grade Pay, whereby there was an increase in the Grade Pay from Rs.2400/- to Rs.4200/- to all those employees who were awarded Selection Grade prior to 2006 in the post of Selection Grade Junior Assistant."
84. The above view was accepted by the Division Bench of this Court in W.P.No.32149 of 2018 vide order dated 21.08.2019 with the following observations:-
20. Further, the case of the petitioner is squarely covered by the order of the Madurai Bench of this Court in W.P.(MD).No.12104 of 2017, ______________ https://www.mhc.tn.gov.in/judis Page No 50 of 57 W.P.No.7307 of 2020 and etc. batch dated 20.12.2017. But in the counter affidavit of the third respondent, it has been stated that the petitioner herein is not a party to the said Writ Petition and hence, his claim cannot be accepted.
But in our considered opinion, when pursuant to the said order of this Court, the Grade Pay was fixed as Rs.4200, and similarly placed employees have been awarded with the said benefit, the same could be applied to the petitioner also. Simply the respondents cannot reject the said claim of the petitioner based on the said order of this Court on the ground that the petitioner herein is not a party to it. Therefore, by virtue of the said judgment of this Court, we are of the view that the impugned order is liable to be quashed.
85. Therefore, there is no justification in the impugned orders ordering recovery of the amounts already paid to these petitioners. The above paragraphs from the decision of the Hon’ble Supreme Court makes it clear that the recovery of benefits conferred for the period commencing from 2007 cannot be justified. Even if any recovery has already been made, it cannot be sustained as the petitioners were at any fault.
86. Revision of pay cannot made after a lapse of fourteen years since it was made. Such exercise after a lapse of such a long period of ______________ https://www.mhc.tn.gov.in/judis Page No 51 of 57 W.P.No.7307 of 2020 and etc. batch time is to be declared as arbitrary.
87. In the case of the petitioner in W.P.No.10277 of 2020 (Gurumoorthy) alone, the benefit of clarification of the then Principal Secretary to Government of Tamil Nadu vide letter dated 08.11.2010 bearing reference Letter No.63305 / Pay Cell / 2010-11 has not been given.
88. There cannot be selective discrimination in the context of the said petitioner alone. Therefore, the respondents are directed to regularise the pay of the petitioner in W.P.No.10277 of 2020 on par with other petitioners and pay the same to the said petitioner within a period of 180 days from the date of receipt of a copy of this order.
89. As mentioned above, in case of few post and services, the respondents have obtained approval of the Finance Department of the Government while in the case of the petitioners, such approval has not been obtained. The petitioners are thus entitled for the same. ______________ https://www.mhc.tn.gov.in/judis Page No 52 of 57 W.P.No.7307 of 2020 and etc. batch
90. The respondents cannot be seen discriminating between two classes of Government employees. Therefore, the impugned demands/revision of pay cannot be justified. The anomaly in the pay and pension of these petitioners cannot be allowed to linger as a sword of Damocles is over their head in the fag end of their career.
91. These petitioners deserve a dignity and cannot be denied of the dignity which were conferred on them for no fault of their during the last decade. Such benefits conferred earlier would have altered their life style and standing in the society.
92. Any downward revision will be not only discriminatory but also arbitrary deny the right to dignity under Article 21 of the Constitution of India. It will also result in a huge climb down in the social and economic status of these petitioners for no fault of theirs. The fact that there is also no scope for further promotion and the fact that there was indeed no promotion from 1998 impels the Court to confer equity in favour of the petitioners. Therefore, they cannot be penalised at this distant point of time for no fault of theirs.
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93. Therefore, these petitioners other than the petitioner in W.P.No.10277 of 2020 (Gurumoorthy) shall continue to draw the same pay/pension in the same pay scale prior to the initiation of the impugned proceedings.
94. As far as the petitioner in W.P.No.10277 of 2020 (Gurumoorthy) is concerned, the petitioner is entitled to the pay on par with his batch mates and other petitioners.
95. The Government of Tamil Nadu shall therefore issue appropriate Government Order on par with G.O.Ms.No.216, Finance (Pay Scale) Department, dated 22.03.1993 and G.O.Ms.No.306, Finance (CPMC) Department, dated 12.09.2018. The Government of Tamil Nadu shall, in the light of the clarification of the first respondent in the context of wireman vide letter dated 13.08.2018 bearing reference No.22707/eg3/2017-4, regularise the shortcoming in favour of the petitioners and bring a closure of the issue once for all. There shall be neither any recovery of the amounts from pay/pension of the respective ______________ https://www.mhc.tn.gov.in/judis Page No 54 of 57 W.P.No.7307 of 2020 and etc. batch petitioners nor any downward revision in future.
96. In the result, these Writ Petitions are allowed with the following directions:-
i. There shall be no recovery of any amounts paid to the petitioners;
ii. Any recovery made so far/withheld pursuant to the impuned proceedings / orders shall be repaid to the respective petitioners within a period of 120 days from the date of receipt of a copy of this order. iii. The petitioner in W.P.No.10277 of 2020 (D.Gurumurthy) is entitled for step up of the pay scale conferred on the other petitioners. iv. The respondents shall calculate the arrears and pay the same to the petitioner in W.P.No.10277 of 2020 (D.Gurumurthy) within a period of 120 days from the date of receipt of a copy of this order. v. There shall be no downward the re-fixation of pay/pensions of the respective petitioners. vi. The respondents shall take steps to get a Government Order ordered above to be issued within a period of 180 days from the date of receipt of a copy of this order and to bring a closure to the issue once for all.
vii.No costs. Consequently, connected Miscellaneous ______________ https://www.mhc.tn.gov.in/judis Page No 55 of 57 W.P.No.7307 of 2020 and etc. batch Petitions are closed.
23.12.2021 Internet : Yes/No Index : Yes / No jen To
1.Commissioner, Greater Chennai Corporation, Ripon Building, Chennai – 600 003.
2.Assistant Engineer, Greater Chennai Corporation, Mechanical Engineering Department, Inspection Vehicle Department, No.19, Adithanar Salai, Pudupet, Chennai – 600 002.
3.Asst. Executive Engineer, Greater Chennai Corporation, Mechanical Engineering Department, Inspection Vehicle Department, No.19, Adithanar Salai, Pudupet, Chennai – 600 002.
C.SARAVANAN, J.
jen ______________ https://www.mhc.tn.gov.in/judis Page No 56 of 57 W.P.No.7307 of 2020 and etc. batch Pre-Delivery Common Order in W.P.No.7307 of 2020 and etc. batch 23.12.2021 ______________ https://www.mhc.tn.gov.in/judis Page No 57 of 57