Madras High Court
S. Kumar vs The State Of Tamil Nadu on 2 November, 2018
Author: V.Bhavani Subbaroyan
Bench: V. Bhavani Subbaroyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2018
CORAM:
THE HONOURABLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
W.P.Nos.17445 &17446 of 2008
and
M.P.No.2 of 2008
1. S. Kumar
2. B. Sekaran
3. K. Gnanapandithakutty
4. R. Vijayakumar
5. J. Damodharan
6. P. Sekar
7. R. Prabakaran ... Petitioners
in W.P.No.17445 of 2008
1. V. Jayapal
2. K.P. Ramachandran
3. P. Pappathy
4. A. Nargis Banu
5. K. Kangayan ...Petitioners
in W.P.No.17446 of 2008
Vs
1. The State of Tamil Nadu,
Representation by it Secretary to Government,
Highways Department,
Fort St.George,
http://www.judis.nic.in
Chennai-600 009.
2
2. The Chief Engineer(General),
Highways Department,
Chepauk,
Chennai-600 005. .. Respondents
in both W.P.Nos.17445 & 17446
of 2008
3. The Chief Engineer,
National highways,
Chepauk,
Chennai-600 005.
4. The Chief Engineer,
Designs and Investigation,
Industrial Estate,
Guindy,
Chennai-600 032. .. Respondents
in W.P.No.17445 of 2008
5. The Director,
Highways Research Station,
Agro house,
Guindy,
Chennai-600 032. .. Respondent
in W.P.No.17446 of 2008
Prayer in W.P.No.17445 of 2008 : Writ Petition has been filed
under Article 226 of Constitution of India, praying to issue a Writ of
Certiorarified Mandamus, to call for the records of the 1 st Respondent
in G.O.Ms.No.39, dated 25.02.2004 and quash the same insofar it
does not protect the pay scale and consequently direct the
Respondents to fix the pay scale of the petitioners at 4000-100-6000
as per the scale of pay received before redeployment.
Prayer in W.P.No.17446 of 2008: Writ Petition has been filed
under Article 226 of Constitution of India, praying to issue a Writ of
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3
Certiorarified Mandamus, to call for the records of the 1 st Respondent
in G.O.Ms.No.39, dated 25.02.2004 and quash the same insofar it
does not protect the pay scale and consequently direct the
Respondents to fix the pay scale of the petitioners at 4300-100-6000
as per the scale of pay received before redeployment.
For Petitioners : Mrs.C.Uma
in both W.Ps
For Respondents : Mr. Thangavadhana Balakrishnan
Additional Government Pleader
in both W.Ps
COMMON ORDER
These two writ petitions have been filed seeking to quash the records of the 1st Respondent in G.O.Ms.No.39, dated 25.02.2004, insofar it does not protect the pay scale and consequently direct respondents to fix the pay scale of the respective petitioners at 4000-100-6000 and 4300-100-6000 respectively as per the scale of pay received before redeployment.
2. The learned counsel for the petitioners would submit that, they were appointed in the Transport and machinery Workshop, Guindy in the Mechanical Wing under the Highways Department, Government of Tamil Nadu. The petitioners state that the workshops undertake service and maintenance of the heavy vehicles and other equipments. As per G.O.Ms.No.111 dated 06.06.2003 wherein, the http://www.judis.nic.in 4 workshops working under the Highways Department were incurring heavy loss due to the entry of private contractors, started laying roads and bridge construction works. Hence, the three workshops working under the Highways Department were decided to be closed.
3. As per the said decision, the petitioners were given redeployment, prior to redeployment, their salary was fixed at Rs.4300-100-6000 and after the redeployment the same was reduced to Rs.3050-75-3950-80-4590. The learned counsel for the petitioners stated that, eventhough, there is no difference in the basic pay received by the petitioners both pre-redeployment and post- redeployment but there was a disparity. On pay scales after redeployment, the redeployed petitioners were entitled to an increment of Rs.100/- till their basic pay reached Rs.6000/-. However, after redeployment, the respondents have fixed the pay scale in the highest scale and the petitioners were prevented from availing further increments.
4. The learned counsel for the petitioners would further submit that, there were nearly 420 workers and 1000 contract employees on the rolls. Since, the Highways Department have to be constantly involved in the building up of roads, bridges and flyovers, lots of machineries namely road roller, road laying equipment and http://www.judis.nic.in 5 excavator and other heavy equipments gets repaired in the workshops of the 3rd respondent. Therefore, they used to work two shifts alternatively every day by undertaking various works. In the later stages due to the entry of private contractors in the road laying sector and bridge construction works, the workshops functioning under the Highways Department were lying idle and the Government found that, it is very difficult to sustain the said functioning of workshops itself. Since there was a heavy loss, the Government decided to close the workshops working under the Highways Department. Hence, the equivalent posts of foreman, hammer man, moulder, tool grinder were not available in any other Highways Department and the employees were allowed to go for voluntary retirement and other persons who had qualifications will be appointed as Record Clerk, Office Assistant, Junior Assistant and Driver in the Highways Department or they will be transferred to equivalent post. G.O.Ms.No39 issued by the 1st respondent is as follows:
“4. In exercise of the powers conferred under General Rule 48 of the Tamil Nadu and Subordinate, the Governor of Tamil Nadu hereby relax rules 2(b) of Tamil Nadu Basic Service Rule: Rule 2(b) of Tamil Nadu General Subordinate Service Rule Class XXII: Rule (3) of Tamil Nadu Engineering Subordinate Service http://www.judis.nic.in Ad-hoc Rules and Rule (3) of Tamil Nadu 6 Engineering Subordinate Service Research laboratory Staff Adhoc rule as mentioned in the annexure to this order in favour of the individual mentioned therein, so as to regularize their services in the respective posts and relaxes F.R.22(2)(7) so as to fix their pay as mentioned in Column 10 of the annexure with effect from their date of appointment.
5. The Chief Engineer (g1), Highways Department is directed to take immediate action to regularize their services and to fix their pay in the present post a in the annexure and disburse the arrears of salary, if any due the individuals”.
5. As per the said G.O.Ms.No39, the petitioners scale of pay before and after redeployment are as follows:
Name of the Date of Re- Name of Scale of pay Basic pay petitioners deployment the post fixed after received appointed re- after re-
after re- deployment deploymen
deployme t
nt
V. Jayapal 06.08.2003 Lab Rs.3050- Rs.4590
Attender 75-3950- +Pp 950
80-4590 (spl.Gr)
K.P.Ramachandran 10.07.2003 Lab Rs.3050- Rs.4590 +
Attender 75-3950- Pp 1160
80-4590 (spl.Gr)
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Name of the Date of Re- Name of Scale of pay Basic pay
petitioners deployment the post fixed after received
appointed re- after re-
after re- deployment deploymen
deployme t
nt
A. Nargis Banu 15.07.2003 Lab Rs.3050- Rs.4590 +
Attender 75-3950- Pp 1160
80-4590 (spl.Gr)
P.Pappathy 15.07.2003 Lab Rs.3050- Rs.4590 +
Attender 75-3950- Pp 1050
80-4590 (spl.Gr)
K. Kangayan 10.07.2003 Lab Rs.3050- Rs.4590 +
Attender 75-3950- Pp 710
80-4590 (spl.Gr)
6. Aggrieved by the said disparity, the petitioners have raised various grounds and they would further submit that, as per Fundamental Rule 19 when the Government servant is paid Personal pay, such pay should not be more than 1/5th of the basic pay and should not exceed Rs.300/- and the lesser sum of the two should be taken. As per G.O.Ms.No.39 dated 25.02.2004, the 1st petitioner was paid Rs.500/- as special pay which was in contravention of the said Rule. The petitioners personal pay was fixed at Rs.500/- to overcome the disparity in the pay received by the petitioners , pre-deployment and post-deployment in the pay scales.
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7. The learned counsel for the petitioners would further contend that the said anomaly would not have arisen if the petitioners pay scales were maintained on redeployment. He would further submit, that the petitioners send representation to the respondents to fix their pay scale on par with the pay scale received by them pre- deployment.
8. For the said representation, the 2nd respondent has addressed a letter to the 1st respondent stating that the employees like the petitioners working in the workshops under the Mechanical Wing of the Highways Department, when they were given redeployment in the Highways Department, were not given pay scale protection. They were drawing higher pay prior to their re-designation and requested the 1st respondent to fix the pay scale to the petitioners on par with the pay scale received by them, prior to the redeployment as one time measure. The petitioner had sent a representation again on 28.05.2006 and 17.04.2007 requesting the same.
9. The learned counsel for the petitioners would also point out that the Secretary, Personnel and Administration Department issued G.O.Ms.No.86, dated 08.02.1996 wherein it was stated that http://www.judis.nic.in 9 drivers working in all Government Departments who were medically unfit should be given redeployment as helpers and office assistants depending upon their qualifications by retaining their pay scales. However, the petitioners have not been given any pay scale protection after redeployment. He would also point out that the redeployment and the action of the respondents in not retaining the pay scales is violative of Rule 40-A of Tamil Nadu State and Subordinate Services Rules, which is extracted here under:
“40-A Transfer of Government servant from one service to another service:
Notwithstanding anything contained in these rules or in the Special Rules or ad-hoc rules, the State Government may, in public interest, transfer a Government Servant from one category or class of one service to another category or class of another service on administrative grounds.
Provided that the Government servant so transferred shall possess the requisite qualification and shall hold analogous post in the new service to which he is transferred with protection of pay and conditions of service attached to the post at the time of transfer”.
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10. Since, the petitioners were transferred from one service to other service without any protection of pay scale, the same is violative of above said rules and therefore the petitioners prayed for additional increment on attaining Super Grade on completion 30 years and the petitioners due to the redeployment were not entitled to the said increment as there is change in service. The denial of the said increment is in violation of the Rule 40-A of Tamil Nadu State and Subordinate Services Rules and due to the denial of the yearly increments, the petitioners gratuity, surrender leave, commutation and pension benefits will be affected.
11. The learned Additional Government Pleader has filed a counter affidavit and would contend that, as per G.O.Ms.No.111 of Highways Department, dated 06.06.2003, Mechanical wing of the Highways Department itself was disbanded with effect from 06.06.2003 and the persons working in 38 different categories in three workshops namely Chennai, Pudukottai and Coimbatore were allowed to go on voluntary retirement and further some of them were absorbed or redeployed to the vacant posts based on their educational qualification or redeployed to Transport Corporations subject to their requirement or if any of the above option are not possible, they would be retrenched from service. No post equivalent http://www.judis.nic.in 11 to their cadre were vacant in the Highways Department at that time. The Transport Corporations also did not absorb those officials to their Corporations. Only on consideration of the plight of the petitioners and on taking sympathetic view the petitioners were appointed in lower grade posts as Office Assistants or cleaners with reference to their educational qualification instead of retrenching them from service. But they were given pay protection and the pay fixed in the scale of pay applicable to the post of Office Assistant/Cleaner at the stage equivalent to the pay last drawn and the maximum of the time scale of pay with the balance amount as Personal pay which is as follows:
S. Name of the Pay last drawn in the Pay fixed after No Person & Post earlier post redeployment after Redeployment Scale of Basic pay Scale of Basic pay pay Pay
1. S.Kumar Rs.4000- Rs.4900 Rs.2750- Rs.4400+ 100-6000 70-3800- Rs.500 Office Assistant (sel Gr) 75-4400 Personal pay(Spl Gr)
2. B.Sekaran Rs.4000- Rs.4800 Rs.2750- Rs.4400+ 100-6000 70-3800- Rs.400 Office Assistant (sel Gr) 75-4400 Personal pay(Spl Gr)
3. K.Gnanapanditha Rs.4000- Rs.4800 Rs.2750- Rs.4400+ kutty 100-6000 70-3800- Rs.400 http://www.judis.nic.in (sel Gr) 75-4400 Personal Office Assistant 12 S. Name of the Pay last drawn in the Pay fixed after No Person & Post earlier post redeployment after Redeployment Scale of Basic pay Scale of Basic pay pay Pay pay(Spl Gr)
4. R. Vijayakumar Rs.4000- Rs.5100 Rs.2750- Rs.4400+ 100-6000 70-3800- Rs.700 Office Assistant (Ord Gr) 75-4400 Personal pay(Spl Gr)
5. J.Damodaran Rs.4000- Rs.4900 Rs.2750- Rs.4400+ 100-6000 70-3800- Rs.500 Cleaner (sel Gr) 75-4400 Personal pay(Spl Gr)
6. P.Sekar Rs.4000- Rs.4800 Rs.2750- Rs.4400+ 100-6000 70-3800- Rs.400 Office Assistant (sel Gr) 75-4400 Personal pay(SplGr)
7. R.Prabakaran Rs.4000- Rs.4200 Rs.2750- Rs.4175+ 100-6000 70-3800- Rs.25 Office Assistant (Ord Gr) 75-4400 Personal pay(Spl Gr)
12. The services rendered by them in the original posts was taken for further sanction of annual increment in the new posts. The petitioners 1-6 have reached the maximum level in the scale of pay in the new post and they were entitled to stagnation increments only.
The 7th petitioner has to draw his increments in the new scale of pay. The petitioners have suffered little loss due to the subsequent lesser rates of increment, which were in peculiar circumstances. The http://www.judis.nic.in 13 petitioners were redeployed as stated supra only on taking into consideration of the plight of their families and in the redeployed post, they have reached the maximum in the time scale of pay and are entitled only for stagnation increments once in two years as per rules.
13. The learned Additional Government Pleader would also further contend that the petitioners should be satisfied that they have been given redeployment instead of retrenching them. As per the policy decision, the Highways Department, Mechanical wing has been closed and according to their educational qualification they were redeployed in various departments and the petitioners cannot compare themselves with the other persons, since the redeployment itself is a boon to them.
14. As per Fundamental Rule 19, the petitioners can be given only Rs.300/- or 1/5 of the basic pay as personal pay. The said Fundamental Rule 19 relaxed in favour of the petitioners 1-6 and allowed them personal pay in 'excess' of the said limit to avoid 'any loss' in their emoluments on the date of redeployment. There is no rule to fix the pay of the Government servant in a scale of pay which is applicable to higher post, if they have already reached the maximum of the time scale of pay applicable to the post in which they http://www.judis.nic.in 14 are working. As per the present status, they have already reached the maximum in the time scale of pay and entitled for stagnation increment once in two years as per the prevailing rules.
15. The learned Additional Government Pleader would further submit that, there is no violation of Articles 14 and 16 of the Constitution of India and the pay has been protected eventhough they have redeployed however in the lower cadre post and General Rule 40-A is not applicable to the petitioners and only on the sympathetical ground, the petitioners have been redeployed and they cannot ask more than that. He would further submit that, the maximum benefit has been given to the petitioners and the petitioners plea cannot be granted, as instead of retrenching them, they have been given post taking their family situations.
16. Heard the learned counsel for the petitioners and the learned counsel for the respondents and perused the materials available on record.
17. It could be seen from the materials on records that the workshops of Highways Department, where the petitioners working were closed due to the loss sustained by the Government. The Government has taken a policy decision to engage private parties or http://www.judis.nic.in 15 contractors and were entrusted with the works done by the Highways Department. Since the private contractors were applying new techniques due to which Government workshops have been closed down. Only on sympathetic view taken by the Government on the persons employed in the workshops, a decision was taken to grant Voluntary Retirement Scheme to its employees who were willing to accept and other persons were given an option of redeployment in various other Department as per their educational qualification. The last and final option was also for retrenching the employees if there was no suitable post available to accommodate them.
18. In today's scenario in the country regarding getting an employment itself is a big issue that to in Government service, the petitioners have been redeployed instead of retrenchment which has to be accepted in a positive way and the petitioners cannot seek more benefits in the said redeployment. The petitioners have been redeployed and their pay has been protected instead of returning.
19. Hence, this court is of the firm view that the petitioners interest have been protected by redeployment by the respondents and the petitioners cannot seek more pay comparing themselves with others.
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20. In view of the above facts and circumstances, this Court is not inclined to interfere with the orders passed by the respondents and the prayer in the writ petitions to refix the pay at 4000-100-6000 and 4300-100-6000 respectively, which they were seeking prior to redeployment cannot be granted.
Accordingly, these two writ petitions are dismissed. Consequently, the connected Miscellaneous Petition is closed.
02.11.2018 vji/nsd Index:Yes/ No Internet: Yes/No Speaking/Non-speaking http://www.judis.nic.in 17 To
1. The State of Tamil Nadu, Representation by it Secretary to Government, Highways Department, Fort St.George, Chennai-600 009.
2. The Chief Engineer(General), Highways Department, Chepauk, Chennai-600 005.
3. The Chief Engineer, National highways, Chepauk, Chennai-600 005.
4. The Chief Engineer, Designs and Investigation, Industrial Estate, Guindy, Chennai-600 032.
5. The Director, Highways Research Station, Agro house, Guindy, Chennai-600 032.
http://www.judis.nic.in 18 V.BHAVANI SUBBAROYAN, J.
vji/nsd W.P.Nos.17445&17446 of 2008 and M.P.No.2 of 2008 02.11.2018 http://www.judis.nic.in