Madras High Court
S.Saraswathi vs The Secretary To Government on 8 April, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.04.2014 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.No.25556 of 2013 and M.P.Nos.1 & 2 of 2013 S.Saraswathi ... Petitioner Vs. 1.The Secretary to Government, representing to State of Tamil Nadu, Personnel and Administrative Reforms (U-special) Department, Secretariat, Chennai - 600 009. 2.The Secretary to Government, representing to State of Tamil Nadu, Highways and Minor Ports Department, Secretariat, Chennai -600 009. 3.The Secretary to Government, representing to State of Tamil Nadu, Finance Department, Secretariat, Chennai - 600 009. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the first respondent in G.O.Ms.No.112 P & AR Department, dated 13.07.2012 and quash the same insofar as the direction issued for upgradation / stepping up of pay on par with juniors in one unit as stated in para 6 of the order as well as para 14 of the order fixing the cut off date for payment of benefits are concerned and consequently direct the respondents 1 & 3 to pass orders for the post / pay parity of seniors in one unit recruited and appointed as Typist / Personal Clerk to the Tamil Nadu Secretariat Services before 28.01.1994 and promoted as Assistant Section Officer from the combined seniority list of Assistant Section Officer panel on par with their juniors in Finance Department by way of amending para 6 of G.O.Ms.No.112 Personnel and Administrative Reforms (U.Special) Department, dated 13.07.2012, with payment of arrears of salary from 30.10.2009 within a stipulated time. For Petitioner : Mr.G.Sankaran For respondents : Mr.P.H.Aravind Pandian, Addl. Advocate General, assisted by Mr.R.Vijayakumar, Addl. Government Pleader ORDER
This writ petition has been filed by the petitioner for a writ of Certiorarified Mandamus, to call for the records relating to the order passed by the first respondent in G.O.Ms.No.112 P& AR Department, dated 13.07.2012 and quash the same, insofar as the direction issued for upgradation / stepping up of pay on par with juniors in one unit as stated in para 6 of the order as well as para 14 of the order, fixing the cut off date for payment of benefits are concerned and consequently direct the respondents 1 & 3 to pass orders for the post / pay parity of seniors in one unit recruited and appointed as Typist / Personal Clerk to the Tamil Nadu Secretariat Services, before 28.01.1994 and promoted as Assistant Section Officer from the combined seniority list of Assistant Section Officer panel on par with their juniors in Finance Department by way of amending para 6 of G.O.Ms.No.112, Personnel and Administrative Reforms (U.Special) Department, dated 13.07.2012, with payment of arrears of salary from 30.10.2009 within a stipulated time.
2.The brief facts which are necessary to dispose of this writ petition are as follows;
(a) The petitioner was appointed as Typist in one unit in Tamil Nadu Secretariat Service through Tamil Nadu Public Service Commission on 25.03.1978. She was promoted as Assistant Section Officer on 15.12.1994 and further promoted as Section Officer on 31.12.2007 and thereafter, she was promoted as Under Secretary on 09.01.2013 and is working in Highways and Minor Ports Department till date. According to the petitioner, originally all the departments in the Secretariat including Law and Finance Departments were under one unit and the appointments to all the entry level posts viz., Junior Assistant (now Assistant), Assistant (now Assistant Section Officer), Typist / Personal Clerks, were made only from the common list of candidates selected by the TNPSC, as per G.O.Ms.No.70, Public (Service) Department, dated 17.06.1961. But, subsequently, as per G.O.Ms.No.1290, dated 05.06.1970, the Finance and Law departments were excluded from one unit system, without amending Special Rules for Tamil Nadu Secretariat Service and therefore, all the entry level posts in the cadre of Junior Assistant, Assistant, Section Officer, Typist / Personal Clerks were continued to be filled up from the common list of candidates selected and allotted by TNPSC to the Secretariat till 1995.
(b)While so, the State Government issued orders in G.O.Ms.No.30, P & AR Department, dated 28.01.1994, amending the Special Rules for Tamil Nadu Secretariat Services to notify Finance and Law Departments as separate units from the level of Section Officer and above. However, till the amendment of service Rules, there was a common selection to the entry level posts, both in one unit and finance unit. But no special criteria was followed while allotting the selected candidates to the Finance Department from the common list and all the allotments were made as applicable to the one unit staff. However, insofar as promotion and other conditions of services are concerned, the finance department is treated as separate unit, due to which the Junior Assistant / Typist / Personal Clerk allotted to Finance Department were able to get promotion to the higher posts viz., Assistant Section Officer and Section officer in shorter time, when compared to their counterpart in one unit, since the Finance Unit is with lesser number of posts treated as single unit. Further, the Assistant / Typist / Personal Clerk allotted to Finance Department were able to obtain promotion in advance overlooking their seniors working in other departments coming under one unit. Hence, O.A.No.166/1990 has been filed before the Tamil Nadu Administrative Tribunal and the same was disposed of on 16.04.1993, holding that the seniors working in one unit are entitled to be promoted as Assistant Section Officer with effect from the date of their juniors promotion in finance unit.
(c) Pursuant to the order passed by the Tribunal, the Government issued orders in G.O.Ms.No.338, P & AR Department, dated 08.11.1995, by which the applicants in O.A.No.166/1990 were given promotion on par with their juniors in finance unit. When the representations were made by the similarly placed persons, the Government issued G.O.Ms.No.126, P & AR Department, dated 29.05.1998, granting promotion and stepping up of pay for the seniors in one unit recruited on or before 28.01.1994 on par with their juniors in Finance Department on various conditions. In pursuance of the implementation of G.O.Ms.No.126, dated 29.05.1998, similar post / pay anomaly arose within Assistant Section Officers in one unit and the same was sought to be rectified as per the orders passed in G.O.Ms.No.171, P & AR Department, dated 28.09.2006, thereby, the Government directed that the Assistant Section Officer promoted from the post of Assistant (formerly junior assistant) who were seniors to the Assistant Section Officer promoted from the post of Typist / Personal Clerk in the combined seniority list of Assistant Section Officers to be given the pay parity / upgradation on par with their juniors with effect from 29.05.1998.
(d) After some time, the juniors working in Finance Department appointed prior to 28.01.1994 were again pushed up to higher posts with higher scale of pay overtaking their seniors in one Unit. Therefore, the Government again issued G.O.Ms.No.154 P & AR Department, dated 30.10.2009, 'another one time affair' on the analogy of earlier orders passed in G.O.Ms.No.126, dated 29.05.1998. However, the benefit of upgradation of posts or stepping up of pay was confined only to the promotees from the post of Assistant in one unit. In the said G.O., it is stated that the issue of rectification of pay anomaly in respect of typists / personal clerks promotees shall be taken up separately.
(e) While so, after three years of G.O.Ms.No.154, dated 30.10.2009, the Government issued G.O.Ms.No.112, P & AR Department, dated 13.07.2012, granting the upgradation / stepping up of pay to the persons, who have been recruited and appointed as Typist/ Personal Clerk to the Tamil NadU Secretariat Service before 28.01.1994 and promoted as Assistant Section Officer from the combined seniority list (Assistant Section Officer) Panel and who are in service on the date of issue of the order, on par with their juniors in one unit itself. Accordingly, the benefit of post/pay parity on par with the juniors of the finance unit is not extended for the persons appointed as Typist / Personal Clerk in the Tamil Nadu Secretariat Service before 28.01.1994 and promoted as Assistant Section Officer from the combined seniority list. Further the said benefit was given effect to only from the date of issuance of order viz., 13.07.2012. Aggrieved by the said portions of the order in G.O.Ms.No.112 P & AR (U. Special) Department, dated 13.07.2012 i.e., the upgradation / stepping up of pay on par with the juniors in one unit, mentioned in paragraph No.6 of the order and fixation of cut off date for payment of benefits mentioned in pargraph No.14 of the order, the petitioner has come forward with the present writ petition for the relief stated supra.
3.The respondents 1 & 3 filed a counter stating that G.O.Ms.No.154, dated 30.10.2009 and G.O.Ms.No.112, dated 13.07.2012 have been issued based on the decision of the Government. The orders issued in G.O.Ms.No.112, P & AR (U. Special) Department, dated 13.07.2012, is applicable only to the persons, who were in service on the date of issue of orders and recruited through the Tamil Nadu Secretariat Service before 28.01.1994 and promoted as Assistant Section Officers from the combined seniority list of Assistant Section Officers panel, and their post / pay would be upgraded / stepped up on par with their juniors in one unit. Even though the petitioner is in service on 13.07.2012, her junior in the combined seniority list of Assistant Section Officer in one unit is not the beneficiary of G.O.Ms.No.154, Personal and Administrative Reforms (U.Special) Department, dated 30.10.2009. Therefore, the petitioner is not eligible for getting the benefit of the orders issued in G.O.Ms.No.112, dated 13.07.2012 and the issuance of the above G.Os. is neither arbitrary nor discriminatory.
4.It is further stated in the counter filed by the respondents 1 & 3 that the orders were issued to implement the decision of the Government vide G.O.Ms.No.126, dated 29.05.1998, as one time measure with specific condition that "any subsequent movement upward or downward either in the finance unit or in the one unit after the issuance of the order will not come under the purview of the upgradation / stepping up of the pay now ordered" and accepting the said conditions, the petitioner has also given an individual undertaking to the Department and obtained the pay upgradation. On accepting the terms and conditions and by executing an undertaking, the petitioner cannot again seek any relief by comparing herself on par with her junior employed in Finance Department. Thus, they sought for dismissal of the writ petition.
5.Heard the rival submissions made on both sides and perused the materials available on record.
6.It is the main contention of the learned counsel for the petitioner that though the Assistant, Typist / Personal Clerk posts were entry level posts to the Secretariat service and they were appointed from the common seniority list and they were promoted from the combined seniority list of ASO panel, under G.O.Ms.154, dated 13.10.2009, the Government granted the benefit of upgradation of post / stepping up of pay only to the promotees from the post of Assistant in one unit on par with their juniors in finance unit. Though in G.O.Ms.No.154, it has been stated that the issue of rectification of pay anomaly problems for the post of Typist / Personal clerk shall be taken separately, after the lapse of three years only the Government have issued G.O.Ms.No.112, dated 13.07.2012, without extending the same benefit which was given to the promotees from the post of Assistant. In the said G.O., the upgradation / stepping up of pay for the promotees from the post of Typist / Personal Clerk was directed to be made on par with their junior in one unit itself. As a result, still the juniors in finance unit and promotees from the post of Assistant, are receiving higher pay than the promotees from the post of Typist / Personal Clerk in one unit, though they are seniors to the junior in finance unit. Therefore, according to the petitioner, G.O.Ms.No.112, dated 13.07.2012, came to be issued with utter disregard and discrimination to the persons appointed as Typist / Personal Clerk in one unit and promoted as Section Officer from the combined list of the Assistant Section Officer panel. Therefore, the petitioner prays for quashing of the relevant clauses ie., clause 6 and 14 in G.O.Ms.No.112 and for consequential direction, as stated above.
7.Further the learned counsel for the petitioner relying upon a judgment reported in 2008 (7) SCC 375 (Haryana State Minor Irrigation Tubewells Corporation and others Vs. G.S.Uppal and others) submitted that the Court can interfere with the administrative decision pertaining to the pay fixation and pay parity, when they find such a decision to be unreasonable, unjust and prejudicial to a Section of employees. The learned counsel for the petitioner has also relied upon the judgment reported in 1986 TNLJ 436 (State of Tamil Nadu Vs. Munusamy) in support of his contention that it is not proper to discriminate between two categories of post with identical duties and responsibilities, irrespective of the fact that the employees were discharging duty in different spheres.
8.According to the learned Additional Advocate General, the upgradation / stepping up of pay on par with the juniors in one unit is only a concession given by the Government and the petitioner cannot claim the same as a matter of right. Further it is contended by the learned Additional Advocate General that G.O.Ms.No.126, dated 29.05.1998 and G.O.Ms.No.154, dated 30.10.2009 were issued only as one time measure and in fact, while granting upgradation to the petitioner and others, as per G.O.Ms.No.126, dated 29.05.1998, an individual undertaking was obtained to the effect that "any subsequent movement upward or downward, either in Finance Unit or in one unit after the date of issue of this order will not come under the purview of the upgradation / stepping up of the pay now ordered" and therefore, the petitioner now cannot again seek any relief by comparing herself on par with her juniors employed in Finance Department. It is also contended by the learned Additional Advocate General that if the prayer sought for by the petitioner is allowed by quashing clause No.14, which fixes the cut off date for the payment of benefits, then the Government will have to give pay revision from G.O.Ms.No.154 onwards, which the petitioner is not legally entitled to, because all the G.Os. are only one time affairs.
9.The learned Additional Advocate General by relying upon the judgment reported in 2007(10) SCC 137 (Union of India Vs. Arun Jyoti Kundu and others) submitted that in the said case, the Hon'ble Supreme Court after considering G.O.Ms.No.126, dated 29.05.1988, has held that the said G.O. is only one time affair and the benefit of the said G.O. cannot be extended to the retired employees. The learned Additional Advocate General has also drawn the attention of this Court to the unreported judgment in W.A.No.914 of 2013 of 2013, (The Secretary to Government of Tamil Nadu Vs. P.Lakshmanan) dated 23.07.2013, wherein also G.O.Ms.No.112 dated 13.07.2012 is made available only to the existing employees. Thus, the learned Additional Advocate General submitted that from the above judgment, it is clear that all the G.Os. are only one time affairs and it can be made available only to the existing employees and therefore, the relief sought for by the petitioner to quash the clause 14 of G.O.Ms.No.112 cannot be granted.
10.In view of the above submission made by the learned counsel appearing for the petitioner as well as by the learned Additional Advocate General, the following questions arise for consideration;
(1)Whether para 6 of G.O.Ms.No.112, dated 13.07.2012 is discriminatory in nature and affecting the rights of the petitioner?
(2)Whether the petitioner is entitled for the benefit of post / pay parity with effect from 30.10.2009 i.e., the date on which the Assistant Section Officers of the one unit who was promoted from the post of Junior Assistant, given the benefit of pay revision on par with juniors in Finance unit, as per G.O.Ms.No.112, dated 13.10.2009.
Question No.1:
11.The facts that originally all the departments including Law and Finance in the Secretariat were under one unit and the selection for all the entry level posts viz., Junior Assistant, Assistant, Typist/Personal clerks were made only from the common list of candidates selected by the TNPSC, as per G.O.Ms.No.71, dated 17.06.1961 and subsequently, as per G.O.Ms.No.1290, dated 05.06.1970, the finance and law departments were excluded from one unit system and no amendment to this effect was made in the Special Rules for the Tamil Nadu Secretariat Service till 1994 and as such the selection to the entry level posts in the Secretariat were made from the common list of candidates selected by the TNPSC till 1995 and no special criteria was followed while allotting the selected candidates to the finance department from the common list and thereafter, when the issue regarding the parity in promotion and monetary benefits between the seniors in one unit and juniors in finance unit arose, the Tamil Nadu Administrative Tribunal has in O.A.No.166 of 1990 held that the petitioners therein are entitled for promotion on par with their juniors in finance unit and thereafter, the Government amended the service rules with retrospective effect from 05.06.1970 by issuing G.O.Ms.No.30, dated 28.01.1994 and thereafter, review application was filed before the Tribunal and that was dismissed and subsequently, G.O.Ms.No.126, dated 29.05.1998 came to be issued by the Government granting promotion and stepping up of pay for the seniors in one unit recruited to Tamil Nadu Secretariat Service on or before 28.01.1994 on par with juniors in the finance unit with effect from 29.05.1998, irrespective of the fact that they are promoted from the post of Assistant/Typist/Personal Clerk and when certain pay anomaly arose due to the implementation of G.O.Ms.No.126, dated 29.05.1998, the same was rectified by G.O.Ms.No.171, dated 28.09.2006, are not in dispute.
12.After some time, when the juniors in finance unit got further promotion than the seniors in one unit, the issue with regard to the promotion and pay disparity again arose and the Government issued G.O.Ms.No.154, dated 30.10.2009 as 'another one time affair' on the same analogy of the orders in G.O.Ms.No.126, dated 29.05.1998, however the benefit of upgradation of post/stepping up of pay was granted only to the promotees from the post of Assistant in one unit and for the promotees for the Typist / Personal Clerk, it is stated that the orders would be passed separately. For better appreciation, paragraph Nos.3 to 6 of G.O.Ms.No.154 is extracted hereunder:
"3.In the representations third read above, the Tamil Nadu Secretariat Officers' Association and the Tamil nadu Secretariat Association have represented to the Government that the anomaly of juniors in Finance unit getting earlier promotion and more pay than the seniors in one unit departments is still continuing, even after the issue of orders in the Government order first read above and also pointed out that the disparity between the juniors in Finance unit and seniors in one unit has widened alarmingly and therefore, requested to rectify these disparities on the analogy of the orders issued in the Government order first read above.
4.The Government have examined the above representations of the Tamil Nadu Secretariat Officers' Association and Tamil Nadu Secretariat Association in consultation with Finance Department.
5.The Government after careful consideration direct that the post / pay of seniors in one unit who have been recruited to the Tamil Nadu Secretariat Service on or before 28.01.1994 and promoted as Assistant Section Officer from the category of Assistant (formerly Junior Assistant) only and who are in service on the date of issue of this order shall be upgraded / stepped up on par with their junior in the Finance Unit with effect from the date of issue of this order as "another one time affair", subject to the terms and conditions prescribed in the Government order first read above. Similarly, the post / pay of the seniors in finance unit as on the date of order shall be upgraded / stepped up on par with their juniors in one unit. The issue of rectification of pay anomaly in respect of Typist / Personal Clerk promotees shall be taken up separately.
6.The Government also direct that :
(i)the upgradation / stepping up of pay on par with the juniors in the Finance unit and one unit is purely a person-oriented upgradation and no new posts shall be created for this purpose.
(ii)the upgradation sanctioned for the seniors will lapse in the event of retirement of the individuals concerned or their promotion to the higher post in their normal turn and other contingencies such as voluntary retirement, resignation, death, etc.
(iii)The upgradation ordered above is subject to the following terms and conditions prescribed in the Government order first read above:
(1)the upgradation ordered will involve only stepping up of pay of the senior on part with his junior in the upgraded scale of pay.
(2)it does not entitle him to any claim for arrears of pay.
(3) on upgradation, the senior shall not vacate his post and shall continue to perform the duties attached to the existing post, till he/she gets his/her normal promotion in his/her turn to the next higher post;
(4) the attendant benefits attached to the upgraded posts will be given to them only in the event of their normal promotion to a post carrying such scale and they are no eligible for the same on their upgradation to these posts."
13.From the reading of the above, it is clear that the promotees from the post of Assistant (formerly Junior Assistant) alone were granted the benefit of upgradation / stepping up of pay on par with their juniors in the finance unit with the effect from the date of issue of that order and the similar benefit sought for by the promotees from the post of Typist / Personal Clerk was not considered, however, in the said G.O. it has been stated that the orders would be issued separately, so far as the promotees from the post of Typist / Personal Clerk are concerned. After a period of 3 years, the impugned G.O.Ms.No.112, dated 13.07.2012 came to be issued for the promotees from the post of Typist / Personal Clerk in one unit. But, in the said G.O. in paragraph No.6, it has been stated as follows;
"6.The Government after careful consideration direct that the post / pay of seniors in One unit, who have been recruited and appointed as Typist / Personal Clerks to the Tamil Nadu Secretariat Service before 28.01.1994 and promoted as Assistant Section Officers from the combined seniority list of Assistant Section Officers panel and who are in service on the date of issue of this order be upgraded / stepped up on par with their junior in one unit and the beneficiary of the Government Order fourth read above subject to the terms and conditions prescribed in the Government Order fourth read above. Similarly the post / pay of the seniors in Finance unit as on the date of issue of orders be upgraded / stepped up on par with their junior in Finance Unit and the beneficiary of the Government Order third and fifth read above."
14.Thus, the Government granted upgradation / stepping up of pay to the promotees from the post of Typist / Personal Clerk on par with juniors, who got the benefit of G.O.Ms.No.154, dated 30.10.2009, within one unit itself, instead of on par with their juniors in Finance Unit. As a result, still the juniors in finance unit are getting promotion and higher pay than the promotees from the post of Typist / Personal Clerk in one unit, though they are seniors to the juniors in finance unit. Hence, it is the case of the petitioner that when the promotees from the post of Assistant (formerly Junior Assistant) were given upgradation / stepped up of pay on par with their juniors in finance unit as G.O.Ms.No.154, dated 13.10.2009, the refusal of the same benefit to the promotees from the post of Typist / Personal Clerk is arbitrary and illegal. According to the learned Additional Advocate General, the upgradation / stepping up of pay on par with the juniors in one unit is only a concession given by the Government and the same cannot be claimed as a matter of right. Further, the learned Additional Advocate General submitted that since it is the administrative decision, the scope of interference of the Court is very narrow.
15. With regard to the scope of interference of the Court in the administrative decision, it would be appropriate to look into the decision reported in 2008 (7) SCC 375 (Haryana State Minor Irrigation Tubewells Corporation and others Vs. G.S.Uppal and others) wherein the Hon'ble Supreme Court in paragraph Nos.21, 31 to 34, after relying on various decisions, has held as follows;
21.There is no dispute nor can there be any to the principle as settled in the above cited decisions of this Court that the fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the Courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors (K.T.Veeappa Vs. State of Karanataka) (2006 (9) SCC 406. .........
31. A careful examination shows that the issue was not really about grant of pay scales to Corporation Engineers on par with PWD Engineers. When the pay revision took place, the revised pay scales that were given to the Engineers of the State Government were also given to the engineers of the Corporation with effect from 1.1.1986 thereby maintaining the parity. What was not extended to the Corporation employees, which is the subject matter of the grievance, is the further revision by way of 'removal of anomaly in pay scales' given to AEE/AE/SDO/SDE of the State Government with effect from 1.5.1989 vide circular dated 2.6.1989 of the Finance Commissioner. The real question would be whether what is given by way of anomaly removal in the case of Engineers of State Government, should automatically be extended to the corresponding categories of engineers of the Corporation.
32.When, after a pay revision, an anomaly is found in the pay scale given to a class of Government servants and such anomaly is rectified, it is not a new pay revision but a correction of the original pay revision, or an amendment to the pay scale that has already been granted. Therefore, where the pay revision extended to the government servants has already been extended to the employees of the Corporation also, it follows that any correction of anomaly in the revised pay scale given to the government servants should also be made in the case of those who were earlier given parity by extending the pay scale which is the subject matter of the correction. It should be borne in mind that the question whether Corporation engineers were on par with PWD Engineers and should be given parity in pay scales was already decided when the pay scale revision granted to Government (PWD) engineers was extended to the corporation Engineers also with effect from 1.1.1986. That question did not again arise when the anomaly in the pay revision was rectified with reference to the Government engineers. When the anomaly in the pay scale of Government engineers was rectified, the rectification should apply to Corporation engineers also to maintain the parity.
33. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India[1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion.
34.It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us."
16.Reading of the above judgment would reveal that the Court can interfere with the administrative decisions pertaining to pay parity and pay fixation, when they find such a decision to be unreasonable, unjust and prejudicial to a Section of employees. Further more, the financial loss cannot be the basis for denying revision of pay scales with regard to the limited category of employees.
17.Further, in the judgment reported in 1986 II LLJ 436, a Division Bench of this Court in paragraph No.5 has held as follows;
"This Court from its administrative side recommended to the Third Pay Commission in 1977, for revision of scale of pay of the Copyists, Readers and Examiners on par with Junior Assistants to be revised and that of the Amins on par with Junior Assistants, copyists and readers and examiners pointing out that the duties and responsibilities of Amins are onerous and the Amins in the mofussil Courts and the Senior Bailiffs in the City, more or less do the same duties in the matter of executions of Court orders. But on the recommendations of the Third Pay Commission, the Government in G.O.Ms. No. 1050 Finance, dated 5th October, 1978 issued orders revising the scale of pay of junior assistants, copyists, readers and examiners and the Amins as follows :-
1. Junior Assistants Rs. 350-10-430-15-600
2. Copyists, readers and examiners Rs. 325-10-445-15-550
3. Amins Rs. 280-5-320-10-450 The Amins' Association, Madurai district in the year 1979, made representation for the revision of scale of pay of Amins on par with copyists. The Tamil Nadu Judicial Ministerial Officers' Association made representation in the year 1981 for the revision of scale of Amins as Rs. 325-10-445-15-550 with selection grade scale of pay of Rs. 400-15-490-20-650-25-700 which is the scale of pay and selection grade pay of copyists. The Tamil Nadu Amins' Association has also made representation to this Court on the administrative side for the revision of scale of pay of Amins as applicable to Senior Bailiffs in the Court of Small Causes, Madras i.e., Rs. 325-10-445-15-550. This Court from its administrative side after careful examination recommended the above requests of the Tamil Nadu Judicial Ministerial Officers Association and the Tamil Nadu Amins' Association for revision of the scale of pay Amins as Rs. 325-10-445-15-550 on par with copyists and it is the scale of pay of senior bailiffs in the Court of Small Causes, Madras, based on the recommendations of the Tamil Nadu III Pay Commission. The result is the scale of pay of Senior Bailiffs is the same as the scale of pay of copyists. Hence, if employees of the category of the petitioner asked for the scale of pay, it cannot be stated that they have asked for something different and new. The anomaly and inequality subsists between the Amins in the mofussil and Senior Bailiffs in the city of Madras, and hence there is every warrant for rectifying the same. In any event, the recommendations of the Pay Commission are not binding on the State and it is duty of the State to fix scales of pay irrespective of the recommendation of the Pay Commission, when once it is found that identical duties and responsibilities prevail between the two categories of posts irrespective of the fact that the employees discharge the duties in different spheres. Such a view has already been expressed by another bench of this Court consisting of V. Ramaswami and Sathiadev, JJ. in a recent pronouncement in D. Rajagopalan v. Union of India and others. [1985-I L.L.J. 459]
18.In another judgment reported in 1994 L.W. 358 (The Government of Tamil Nadu Vs. S.Palayam) a Division Bench of this Court in paragraph Nos.5 & 6 has held as follows;
"5.In the present case, the revision of scale of pay is not on the basis that in the secretariat a different scale of pay has been fixed and that should be adopted in the matter of the employees of the High Court. Here another category in the High Court, viz., that of the Assistant was getting the same scale of pay as that of an overseer. Then the scale of pay of the Assistant was revised pursuant to the recommendation of the V Pay Commission, the scale of pay of the Overseer should be automatically revised, as both the categories had the same scale throughout. Inasmuch as the Government has failed to revise the scale of pay of the Overseer to be on par with that of the Assistant, it has introduced discrimination that it has acted arbitrarily in the matter. The Principles of Article 14 of the Constitution of India are already violated.
6.In such a case, it is certainly open to this Court to issue a direction to obliterate the discrimination that is maintained by the Government in the matter of scale of pay between the two categories in the High Court itself."
19.Reading of the above judgment would show that it is not appropriate to discriminate as between two categories of posts with the identical duties and responsibilities irrespective of the fact that the employees discharging duties in different spheres.
20.As far as the present case is concerned, though the promotion was effected based on the combined seniority list of ASO panel, there is a serious discrimination among the single homogeneous class by confining pay / post parity in comparison with juniors in finance unit only to ASO promotees from the post of Assistant and not extending the same to the ASO promotees from the post of Typist / Personal Clerk has not been justified, except saying that it is the administrative decision of the Government and the Court cannot interfere with the same. I do not find any rational relation to the object sought to be achieved by discriminating ASOs from the post of Typist / Personal Clerk alone. Such course adopted by the Government is unreasonable, unjust and prejudicial to a section of employees. Therefore, this Court is inclined to interfere with the same. More over, it is not in dispute that the seniority is a civil right which has an important and vital role to play in one's service career and seniority once settled is decisive in the upward march, then that would give certainty, assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. Otherwise, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Here, in this case, prejudicial to a section of employees G.O.Ms.No.112, dated 13.07.2012 has been issued. Therefore, I am of the opinion that the petitioner is entitled for upgradation of pay / stepping up of pay on par with her junior in finance unit. Therefore, the paragraph No.6 of G.O.Ms.No.112, dated 30.07.2012, is liable to be quashed and the petitioner should be given the benefit as granted to the promotees from the post of Assistant under G.O.Ms.No.154, dated 30.10.2009.
Question No.2:
21.The next fold of submission made by the learned counsel for the petitioner is that since the relief of post / pay parity on par with the juniors in finance unit was given to the promotees from the post of Assistant in G.O.Ms.No.154, with effect from 30.10.2009, the same benefit should be given to the petitioner retrospectively. But, I find that all the G.Os. relating to the upgradation / pay parity were issued as one time affair. In G.O.Ms.No.154, it has been specifically stated that the issue with regard to the pay upgradation / stepping up of pay in respect of the promotees from the post of Typist / Personal Clerk would be taken up separately, but the same was not objected to by the promotees from the post of Typist / Personal Clerk at the relevant point of time. More over, as contended by the learned Additional Advocate General, a Division Bench of this Court in the unreported judgment, dated 23.07.2013, in W.A.No.914 of 2013 as well as the Hon'ble Supreme Court in the judgment reported in (2007) 7 SCC 472, cited supra, have already held that all the G.Os. are one time affairs and the same is applicable only to the existing employee. When that being so, the prayer sought for by the petitioner to quash the clause 14 of G.O.Ms.No.112 is not sustainable.
22.In view of the above, G.O.Ms.No.112, dated 13.07.2012, is quashed insofar as the direction issued for upgradation / stepping up of pay on par with juniors in one unit in paragraph No.6 and consequently the respondents are directed to give similar benefit to the petitioner as granted to the promotees from the post of Assistant in G.O.Ms.No.154, dated 30.10.2009, by making necessary amendment in G.O.Ms.No.112, dated 13.07.2012. So far as the prayer relating to quashment of paragraph No.14 is concerned, the same is rejected.
23.This writ petition is accordingly partly allowed. No costs. Consequently, connected miscellaneous petitions are closed.
08.04.2014
Index : Yes/No
Internet : Yes/No
gcg
To
1.The Secretary to Government,
representing to State of Tamil Nadu,
Personnel and Administrative Reforms
(U-special) Department, Secretariat,
Chennai - 600 009.
2.The Secretary to Government,
representing to State of Tamil Nadu,
Highways and Minor Ports Department,
Secretariat, Chennai -600 009.
3.The Secretary to Government,
representing to State of Tamil Nadu,
Finance Department,
Secretariat, Chennai - 600 009.
R.SUBBIAH, J.
gcg
Pre-delivery order in
W.P.No.25556 of 2013
08.04.2014