Madras High Court
Magesh vs Metropolitan Transport Corporation on 29 January, 2018
Author: V.Parthiban
Bench: V.Parthiban
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.01.2018
Pronounced on : 29.01.2018
CORAM
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
Writ Petition No.31831 of 2012
1. Magesh
2. K.Gowri
3. N.Sangeetha
4. S.Lakshmi
5. S.Ganapathy
6. B.Bhuvaneshwari
7. M.Gayathri
8. S.Baskar
9. L.Ramesh Kumar
10.B.N.Kavitha
11.V.Manipaul
12.K.Srinivasan
13.A.Elangovan .... Petitioners
Versus
Metropolitan Transport Corporation, Chennai,
No.2, Pallavan Salai,
Chennai-600 002. ... Respondent
Prayer: This Writ Petition has been filed seeking for a Writ of Mandamus, directing the respondent Corporation to place the petitioners in time scale of pay with effect from 3 years from the date on which they were recruited on compassionate grounds as Non ITI Helper/Trainees and pay them the difference in salary as arrears w.e.f. the said date, including the increment, night duty wages, off duty wages, leave wages, bonus, revision and all superannuation benefits and award interest at 12% in respect of arrears payable.
For Petitioners : Mr.V.Prakash,
Senior Counsel
for M/s.K.Sudalaikannu
For Respondent : Mr.P.H.Arvind Pandiyan,
Additional Advocate General
assisted by Ms.S.Rajini Ramadoss
O R D E R
All the petitioners herein were appointed in various posts like Driver, Junior Helper etc. in the respondent Corporation on various dates in 1997 and 1998. They are all appointed on compassionate ground in terms of the Scheme applicable to the respondent Corporation. Earlier to the appointment of the petitioners, in 1997, there was another batch of appointments on compassionate ground and those persons were originally appointed as trainees for the period of three years and on completion of the same, they were all placed on regular time scale of pay. The time scale of pay as made applicable to the similarly placed persons is Rs.3240-60-4680 during the relevant point of time. After declaration of probation, their services will be confirmed. According to the petitioners, this was the practice all along.
2. The petitioners herein were also appointed as trainees initially in the year 1998 for a period of 36 months. However, after completion of 3 years training period, they were not placed on regular time scale of pay like other similarly placed persons, but, continued to be paid on consolidated pay at Rs.850/-per month until 2005. Only on 1.9.2005, the petitioners herein were placed on probation in the regular time scale of pay of Rs.4270-60-5710 and after declaration of their probation, their services were confirmed thereafter.
3. Subsequent to the appointment of these petitioners, other batch of compassionate appointees were recruited in the year 2009 and in their case also, the Corporation had placed them on regular time scale of pay on completion of 3 years of service and on declaration of their probation, their services came to be confirmed in 2012. The grievance of the petitioners herein is that in respect of their batch alone, the Corporation has shown a different treatment in the matter of placing them in the regular time scale of pay and denied placing the petitioners on regular time scale of pay for over 5 years. In the said circumstances, the petitioners submitted representations to the Corporation for grant of regular time scale of pay on their completion of 3 years of training and subsequent confirmation thereof, as given to other similarly placed appointees. However, the representations did not evoke any response from the officials of the Corporation and therefore, they are before this Court seeking the issue of Writ of Mandamus.
4. Upon notice, Ms.Rajani Ramadoss, learned Counsel entered appearance on behalf of the respondent and a counter affidavit has been filed.
5. In the counter affidavit filed on behalf of the respondent Corporation, the prayer of the petitioner sought to be resisted for the reasons set forth in paragraphs 7 and 8 which are reproduced below:
''7. It is submitted that inasmuch as the appointment order served on the petitioners is silent about the period of their consolidated service period and the period after which they are liable to be regularised the prayer of the petitioner automatically cease to exist and their writ has no legal legs to stand. It is important that after completion of 3 years of service in respect of these petitioners Government took a policy decision and communicated the recruitment ban to this respondent and directed this respondent not to regularise the services of individuals who are in the temporary basis. This recruitment ban came into effect by orders of Lr.No.58/JD(H)/Fin.(BPE) Department, dated 08.11.2002 and Economy in expenditure was directed vide reference G.O.27, Finance (B.P.E.) Department dated 21.01.2002 and these petitioners were squarely covered under the ban and because of this, their services were continued in the same capacity. If the prayer of these petitioners are conceded it will amount to superseding the policy decision of the Government which is not legal. Hence, it is prayed to dismiss the writ.
It is submitted that the recruitment ban was a subject for negotiation during the settlement talks held during the year 01.09.1995 on the side of unions who participated in the talks in the tripartite talks and ultimately it was agreed and 12(3) settlement under the provision of Industrial Disputes Act, 1947 was entered. The extract of the relevant portion of the settlement is given hereunder : ' ''nghf;Ftuj;J fHf';fspy; jw;nghJ gzpg[hpa[k; 1375 jpdf;Typ gzpahsu;fs; (Daily Paid Employees) 01/09/2005 Kjy; epue;jug; gzpahsh;fshf Mf;fg;gLthh;fs;/ nkYk; jw;nghJ gzpg[hpa[k; 2122 jw;fhypfg; gzpahsh;fs; (Casual Labourers) 01/09/2005 Kjy; jpdf;Typ gzpahsh;fshf (Daily Paid Employees) Mf;fg;gl;L mth;fs; 240 ehl;fs; gzp g{h;j;jp bra;jt[ld; epue;jug; gzpahsh;fshf Mf;fg;gLthh;fs; vd;W xg;g[f; bfhs;sg;gl;lJ/ ,/ nghf;Ftuj;J trjp ehl;L kf;fspd; xU mj;jpahtrpaj; njitahFk;/ etk;gh; 2001y; eilbgw;w ntiy epWj;jj;jpy; bghJkf;fs; kpft[k; ghjpg;gpw;F cs;shdhh;fs;/ ,dp ,J nghd;w epfH;t[fs; eilbgwhJ vd;w RK:fkhd N:H;epiy jw;nghJ cUthfpa[s;sJ/ 2001. etk;gh; jp';fspy; eilbgw;w ntiy epWj;jj;jpy; fye;J bfhz;l bjhHpyhsh;hfS;fF me;j 17 ehl;fis ''ntiy ,y;iy - Cjpak; ,y;iy'' (No work-No pay) vd;w Kot[ bra;j nghjpYk;. ,jdhy; vt;tpj bjhlh; ghjpg;g[k; bjhHpyhsh;fSf;F Vw;glhj tifapy; ,f;fhyj;jij gzpj; bjhlh;r;rpf;F vLj;Jf;bfhz;L epWj;jp itf;fg;gl;Ls;s Ma;t[. Cjpa cah;t[ nghd;wit tHf;fk; nghy; tH';fg;gLk; vd;W xg;g[f;bfhs;sg;gl;lJ/ nkYk; ey;byz;z mog;gilapy;. ntiy epWj;jj;jpy; <Lgl;lJ bjhlh;ghf bjhHpyhsh;fs; kPJ ePjpkd;wj;jpy; bjhLf;fg;gl;l xG';F eltof;iffs;. nghf;Ftuj;Jf; fHf';fspy; vLf;fg;gl;l xG';F eltof;iffs; Mfpa midj;jJk; iftplg;gLk; vd;W xg;g[f;bfhs;sg;gl;lJ/''
8. It is submitted that the agreed above mentioned settlement was fully implemented in respect of these petitioners by bringing them to daily wage basis from 01.09.1995 and confirming the services after completion of 240 days of duty from 01.09.1995 on individual cases. Inasmuch as the 12(3) settlement condition was properly followed and implemented the prayer of the petitioners goes completely against the settlement conditions. No fault can be found on the respondent who has only complied the settlement conditions.''
6. Sri.V.Prakash, learned Senior Counsel appearing for the petitioners submitted that the reasons set forth in the counter affidavit cannot be countenanced both in law and on facts for the reason that the ban on recruitment during the relevant period cannot be enforced in respect of persons who were already recruited and were serving in the Corporation. Even otherwise, the ban came into effect only on 08.11.2002 by which time all the petitioners herein had completed 3 years of the training period and were eligible to be placed in the regular time scale of pay.
7. The learned Senior Counsel further contended that as regards the 12(3) Settlement entered into between the workmen and the Corporation, the same was in relation to the daily wage workers, who were represented by the Unions, but, these petitioners were not a part of the said settlement and therefore, the said Settlement cannot be held against them. According to the learned Senior Counsel for the petitioners, both the reasons are not valid for denying the due benefits to the petitioners herein and in any event, singling out the petitioners alone for a differential treatment, is violative of Article 14 of the Constitution of India, as being clearly discriminatory, unreasonable and arbitrary.
8. On behalf of the respondent Transport Corporation, Sri.P.H.Aravind Pandian, learned Additional Advocate General made his submissions. Apart from reiterating the contents of the counter affidavit, he would submit that the Corporation has issued a Circular dated 5.7.2001 thus instructing the Managing Directors to stop regularising the service of the existing casual labourers without prior approval of the Board. In the light of the circular, no action was taken to regularise the service of the petitioners in addition to the Government ban on recruitment vide Letter dated 08.11.2002.
9. According to the learned Additional Advocate General, the process of regularisation had taken sometime by which the ban was put in place and after lifting of the ban in 2005, the service of the petitioners came to be regularised in 2006. Such action on the part of the Corporation cannot be said to be unreasonable or arbitrary and the same does not call for any interference from this Court.
10. The learned Additional Advocate General would also submit that the Unions have agreed to enter into 12(3) Settlement and the conditions stipulated in the 12(3) Settlement was valid and implemented and the prayer in the Writ Petition goes against the conditions stipulated in the 12(3) Settlement. The learned Additional Advocate General would also draw the attention of this Court to a decision reported in 2012 SCC OnLine Madras 2704 in the matter of the Director of School Education, College Road, Chennai-6 and 2 others vs. Uma Maheswara Higher Secondary School Committee rep. by the Secretary, S.Rmanathan, Kranthai, Thanjavur-613 002 and another in which a learned Division Bench of this Court made the following observations in paragraphs 7 and 10 which are reproduced below:
''7. To effect economy in expenditure, Government issued G.O.Ms.No.212, P&AR Department dated 29.11.2001, in and by which the Government banned filling up of vacant posts completely except certain categories of posts such as Teachers, Doctors and Police. The ban imposed for filling up the post by direct recruitment was lifted vide G.O.Ms.No.14, P&AR Department, dated 07.02.2006. The said G.O.Ms.No.14, P&AR Department, dated 07.02.2006 was further clarified by the Government in the letter addressed to the Director of School Education through letter Na.Ka.No.11462/D2/06 dated 26.05.2006 stating that there is no need to lift the ban on filling up vacancy of non-teaching posts in Aided, High and Higher Secondary Schools, until further orders were issued.
....
....
10. 2nd respondent was sponsored by the Employment Exchange and was appointed on 16.03.2002. Case of 1st respondent is that permission to fill up the post of Night Watchman given by the Chief Educational Officer vide an order dated 16.03.1999. The school had written a letter to the District Employment Officer to sponsor the candidates for the said post. When the appointment was under process, G.O.Ms.No.212, P&AR Department dated 29.11.2001 imposing ban came to be passed. Since the permission to fill up the post of Watchman was granted on 16.03.1999 at least from the date when the ban order was lifted on 07.02.2006, the appointment of 2nd respondent has to be approved. When the Chief Educational Officer had granted permission to fill up the post of Night Watchman way back in 1999, appellants cannot seek to apply the subsequent G.O.Ms.No.91, P&AR Department dated 06.07.2006.'' The learned Additional Advocate General would submit that the ban on recruitment was imposed in order to effect economy in expenditure and any approval of appointment can be granted only after lifting of the ban as observed by the learned Division Bench of this Court which is extracted supra.
11. This Court has given its anxious consideration to the rival submissions of both sides and perused the pleadings and materials placed on record.
12. The contention put forth on behalf of the respondent Corporation that in view of the ban, which was in place, the petitioners could not be brought on regular time scale of pay appears to be without any justification and the said reason cannot also be acceptable as an tenable and worthy argument which merits serious consideration.
13. The reasons are two fold. Firstly, the ban which was put in operation came subsequent to the completion of 3 years training period of the petitioners herein and secondly, the said ban as disclosed in G.O.Ms.No.212 dated 29.11.2001 providing only for filling up of vacant posts except certain categories of posts such as teachers, Doctors and Police Constables etc. The said ban does not even remotely contemplate or envisage placing the employees on regular time scale of pay since these petitioners were already recruited on compassionate ground way back in the year 1998 and had completed 3 years of service by the time the ban was imposed. Therefore, both factually and legally, the arguments advanced on behalf of the Corporation has to be rejected as being without merit and substance.
14. As regards the contention put forth on behalf of the Corporation that the Unions have entered into 12(3) Settlement and the same was binding, and any claim like the present one runs contrary to the conditions of the 12(3) Settlement, is not a legally tenable argument for the reason that the 12(3) Settlement was only in respect of daily rated workmen and these petitioners were not part of the said 12(3) settlement. It was also not demonstrated on behalf of the Corporation that the said Settlement covers the claim of the petitioners who were compassionate appointees. Therefore, this Court is unable to appreciate the argument as to how the 12(3) Settlement which covers the claim of the daily rated employees can be cited as a reason for not granting the benefit of regular time scale of pay to the petitioners when the petitioners had completed 3 years of service as trainees before the actual ban was imposed.
15. Moreover, as rightly contended by the learned Senior Counsel appearing for the petitioners, when the Corporation itself had brought the similarly placed compassionate appointees on a regular time scale of pay on completion of 3 years in respect of the earlier batch of appointees and also the subsequent appointees in 1997 and 2009 respectively, this Court does not see any iota of justification for the Corporation to treat the petitioners differently in the matter of regularisation. Such differential treatment meted out to the petitioners herein does violence to Article 14 of the Constitution of India and therefore, the reasons as set forth by the Corporation cannot stand the test of judicial scrutiny.
16. The learned Additional Advocate General has also relied on yet another decision of this Court dated 9.8.2014 passed in W.P.Nos.22550/2008 etc. batch in which a learned Judge of this Court has recognized the 12(3) Settlement entered into between the workmen and the Management. However as explained, both the decisions relied on by the learned Additional Advocate General, do not help to advance the case of the Corporation as the same cannot be applied to the factual matrix of the present case. This Court, in the circumstances of the case is of the view that the ban by the Government only applies to fresh recruitments as per the contents of the G.O.Ms.No.212 dated 29.11.2001 and therefore, any instructions issued contrary to the said Government Order by way of executive fiat cannot be countenanced in law. For all the above reasons, this Court has no hesitation in issuing the writ of Mandamus as prayed for.
17. Therefore, a direction is issued to the respondent Corporation to place all the petitioners on regular time scale of pay on completion of 3 years of the training period as given to all other similarly placed compassionate appointees and regularise their services on the deemed date of completion of probation from such date with all consequential and other attendant benefits, on such regularisation.
18. The Corporation is directed to pass orders as indicated above, within a period of 10 weeks from the date of receipt of a copy of this Order.
19. With the above directions, the Writ Petition stands allowed. No costs.
.01.2018 Index:Yes/No Internet:Yes/No tsi To Metropolitan Transport Corporation, Chennai, No.2, Pallavan Salai, Chennai-600 002.
V.PARTHIBAN, J.
tsi Pre Delivery Order in Writ Petition No.31831 of 2012 29.01.2018