Madras High Court
C.R.Arul Prakasam vs The Commissioner Of Fisheries on 30 September, 2021
Author: Anita Sumanth
Bench: Anita Sumanth
W.P. No.14394 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.09.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.14394 of 2009
C.R.Arul Prakasam, M.E. …Petitioner
Vs.
1. The Commissioner of Fisheries,
Tsunami Project Implementation Unit,
Nandanam, Chennai – 6.
2. The State of Tamil Nadu,
Rep. by the Secretary to Government,
Revenue Department, Fort St. George,
Chennai – 5.
3. The Executive Engineer,
TPDIU, Thoothukudi.
4. The Executive Engineer,
Water Resource Organisation,
Public Works Department,
Quality Control Division,
O/o CEWRO, Town Hall,
Coimbatore – 1. … Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of Writ of Certiorari calling for the records relating
to the proceedings of the 1st respondent in R.C.No.0901/TPIU/09 dated
13.07.2009 quash the same.
For Petitioner : Mr.S.Raveekumar
For Respondents : Mr.C.Selvaraj
Government Advocate
https://www.mhc.tn.gov.in/judis/
W.P. No.14394 of 2009
ORDER
The petitioner, employed in the Public Works Department, was engrafted to a Special Committee formed for implementation of the Emergency Tsunami Re-construction Project (ETRP) set up by the Department of Fisheries for re- construction, restoration of livelihood, repairs and re-construction of public buildings, providing technical assistance and support of various kinds, for victims of the Tsunami in 2004.
2. The Committee comprised of several persons, some of whom had been deputed from the Department of Fisheries and some who had been specifically contracted for the purpose (collectively referred to as ‘project team’). The remuneration for the members of the project team was as per G.O.Ms.No.246 dated 11.05.2007 (G.O.).
3. Since we are concerned with the pay made out under the aforesaid G.O., specifically the project allowance, that portion of the G.O. as is relevant to determine the aforesaid issue is extracted below:
ABSTRACT Tsunami 2004 – Emergency Tsunami Reconstruction Project (ETRP) assisted by World Bank – Formation of Project Implementation Unit (PIU) at State level and Divisional Implementation Unit (DIU) at Divisional level – Proposal for Staff for Fisheries Department – Approved by Empowered Committee – Sanctioned – Orders – Issued.
Revenue (NC.IV.1) Department G.O. Ms. No.246 Dated: 11.05.2007 https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 Read:-
1. G.O. Ms. No.384, Revenue Department, Dated: 1.7.2005.
2. G.O. Ms. No.418, Revenue Department, Dated: 20.07.2005.
3. Proposal for formation of Project Implementation Unit, Fisheries Department, submitted in the empowered Committee meeting held on 9.2.2007.
4. Minutes of the Sub-Committee Meeting held on 14.2.2007 in the PMU office, Chennai-5.
****** ORDER:-
In the G.O. first read above, Government have accorded administrative sanction for the implementation of Emergency Tsunami Reconstruction Project (ETRP) with World Bank assistance at a cost of Rs.1852.72 crore for Housing Reconstruction, Restoration of Livelihood, repairs and reconstruction of Public Buildings, Providing Technical Assistance and Training and Implementation support for the Tsunami affected victims.
……..
4. The Government, after careful examination, accept the proposal of the Fisheries Department as recommended by the Sub-Committee of the Empowered Committee and accord sanction for the staff to Project Implementation Unit, Chennai at State Level and Divisional Implementation Unit at Divisional level with Head Quarters at Tuticorin and Nagapattinam as detailed in the annexure I & II to this order and sanction a sum of Rs.92,19,540/- (Rupees ninety two lakhs nineteen thousand five hundred and forty only) which is to be met from World Bank assisted ETRP funds. The Project Implementation Unit, Chennai at State Level and Divisional Implementation Unit at Divisional Level will function under the administrative control of the Director of Fisheries. The staff mentioned in the Annexure I & II are sanctioned for a period of one year from the date of filling up of the posts and they shall be extended on the basis of need and performance of the projects implemented. The Director of Fisheries is permitted to nominate a suitable officer from Human Resource Development / Recruitment agency for recruitment or to adopt other modes of recruitment like deputation / contract through employment exchange / Retired persons by calling for advertisements in consultation with Secretary to Government, Animal Husbandry, Dairying and Fisheries Department. The eligibility criteria for contract appointment would be finalized by the Director of Fisheries in consultation with Secretary to Government, Animal Husbandry, Dairying and Fisheries Department. https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 ……………….
4. The expenditure that had been sanctioned as per paragraph 4 extracted above, comprised pay, medical allowance, medical charges, other allowances, house rent allowance, travel concession, city compensation allowance, wages, dearness allowance, dearness pay travel expenses, tour travelling allowance, transfer travelling allowances, festival advances and debit.
5. Two annexures were set out to the G.O., the first setting out the details of the administrative wing of the Unit with which we are not concerned in this writ petition, and the second, the details of pay and allowances to the project team constituents. Annexure – II is relevant for the purpose of the Writ Petition and is extracted below:
Revenue (NC.IV.1) Department Annexure - II (G.O. Ms. No.246, Revenue (NC.IV.1) Department, Dated: 11.5.2007) DIVISIONAL IMPLEMENTATION UNIT AT DIVISIONAL LEVEL, FISHERIES DEPARTMENT S.N Name of the Scale of No. Consolidat Require- Method of Sanction/ o. Post pay of -ed Pay ment per Post month Appointment Rs.
1 Executive 10000-325- 1 25,000 25,000 Deputation/Contract
Engineer 15200
2 Assistant 8000-275- 2 20,000 40,000 Deputation/Contract
Executive 13500
Engineer
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W.P. No.14394 of 2009
3 Assistant 6500-200- 5 15,000 75,000 Deputation/Contract
Engineer/ 10500
Junior
Engineer
4 Superintenden 5700-175- 1 12,000 12,000 Deputation/Contract
t 9000
5 Assistant 4000-100- 2 8,000 8,000 Deputation/Contract
6000
6 Computer 4000-100- 2 5,000 10,000 Contract
Operator 6000
7 Office 2 3,000 6,000 Contract
Assistant
8 Watch Man 1 3,000 3,000 Contract
9 Senior 6500-200- 1 15,000 15,000 Deputation/Contract
Draughting 10500
Officer
10 Draughting 5500-150- 1 12,000 12,000 Deputation/Contract
Officer 10500
11 Technical 4500-125- 5 6,000 30,000 Contract
Assistant 7000
12 Divisional 5500-150- 1 12,000 12,000 Contract
Accountant 10500
Total cost of one month 2,56,000
Project allowance 10% for deputation 25,600
Grand total for one month 2,81,600
Total cost for one year for one division 33,79,200
Total cost for one year for two divisions 67,58,400
6. The constitution of the project team was such that some of the members of the team were deputed from Public Works Department (PWD) such as Executive Engineer (EE), Assistant Executive Engineer (AEE), Assistant Engineer/Junior Engineer (AE/JE), Superintendent, Assistant, Senior Draughting Officer or Draughting Officer and the others engaged on contract https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 basis i.e., Computer Operator, Office Assistant, Watchman, Technical Assistant and Divisional Accountant. The issue arising in this writ petition relates to project allowance payable to the team constituents, computed at 10% of the gross pay to each member.
7. The petitioner was holding the post of AE in PWD and was deputed as part of the project team. He was also the pay-cum-drawing officer for the project team, responsible for drawing and disbursing the pay and allowances to each member of the team. The G.O computes the project allowance at 10% of the total cost of pay per month in respect of all employees, and neither the body of the G.O nor the Annexure make any distinction between those members of the team on deputation and those on contract.
8. While this is so, the Commissioner, Fisheries/R1 interpreted the aforesaid G.O., to mean that the 10% project allowance would have to be computed only with respect of the basic pay and dearness allowance and personal pay, if any. This mode of computation will be applicable to those employees who had been appointed by way of deputation from PWD and not the contract employees, who would be entitled to project allowance of 10% on gross pay. He thus came to pass order dated 27.04.2009 to the following effect:
PROCEEDINGS OF THE COMMISSIONER OF FISHERIES, CHENNAI-6 Present: Thiru. Shambhu Kallollkar IAS No 0901/TPIU/2009 https://www.mhc.tn.gov.in/judis/ Dated: 27.04.2009 W.P. No.14394 of 2009 Sub: Fisheries-Tsunami Project Implementation Unit-Excess Payment of Project Allowance-Regarding Ref: 1. G.O.Ms.No. 246 Revenue (NC-IV) Department, Dt 11.05.07
2. Proc.No. 01/TPIU/07 Dt: 06.07.07 of the Director of Fisheries, Chennai-6 ORDER:
The Government in their orders I cited, have sanctioned for the formation of Tsunami Project Implementation Unit, with sanctioned staff and also sanctioned a sum of Rs.92,19,540/- (Rupees ninety two lakh nineteen thousand five hundred and forty only) to meet out salary components. In Annexure I and II of the above Government Order, Project Allowance of 10% has been worked out on the requirement of salary per month.
It is noted from the pay bills that the eligible staff are paid so far the Project Allowance at 10% of Gross pay which is not as per the prevailing Government Orders. The Project Allowance could be paid to eligible staff at 10% of the pay only (i.e. Basic pay+ Dearness Pay+ Personal Pay if any) Therefore, it is supersession of the earlier orders issued in the reference 2nd cited, it is hereby ordered to allow Project Allowance to the eligible staff in regular pay scale at 10% of the Pay only (ie. Basic Pay + Dearness Pay+ Personal Pay if any) from the month of April 2009.
Also it is hereby ordered that the amount paid in excess already to the staff shall be recovered from them immediately.
The District Revenue Officer/Administrative Manager, Tsunami Project Implementation Unit, Chennai and the Executive Engineers of TPDIU of Nagapattinam and Thoothukudi are requested to issue proceeding of recovery with list containing the names of staff, their joining date and the amount paid in excess towards project allowance to them during that period and sent to this office immediately. They are instructed to take immediate action to recover the excess payment of Project Allowance of 10% on Gross emoluments paid to their staff so far.
Receipt of this memo should be acknowledged forthwith by fax Sd/- Shambhu Kallollkar Commissioner of Fisheries https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009
9. A representation came to be made by the petitioner to R1, wherein he states that the aforesaid understanding of R1 is entirely contrary to the spirit as well as letter of G.O.No.247 of 2007. He brings to the notice of R1 that the proposal for sanction of staff to the project implementation unit, both at State and Divisional level, had been placed before the Empowered Committee which had been accepted, both by the Committee and by the State, proposing only minor modifications that do not impact the grant of project allowance.
10. The project allowance was to be computed at 10% of gross salary to all members of the team and it was only upon this basis that those that had been deputed from PWD had given their willingness to be part of the project. Going back on this assurance would be contrary to what was agreed upon.
11. Reliance is also placed on G.O.Ms.No.111, dated 02.05.1994 whereunder the State has issued ‘standardized terms and conditions’ governing the deputation of State Government Employees to Tamil Nadu State Government Undertakings and to other Institutions barring State Government Undertakings such as Universities, Co-Operative Institutions and others. In such cases, project allowance is one of the entitlements of the person on deputation and G.O.Ms.No.111 states that if a project allowance is paid to other similar employees in that area, then, the deputed Government Servant shall also https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 be entitled to such project allowance. Thus, the petitioner would contend that he must be given the full allowance of 10% of project allowance, as computed in the cases of all team members including those engaged on contract, on gross basis. The State does not deny the entitlement, but contends that the allowance shall be computed only as a percentage of basic pay and dearness allowance and not the gross pay. This is the narrow ambit of the dispute arising before me.
12. Per contra, the learned Government Pleader circulates three Government Orders whereunder proposals have been made by different Government Departments for deputation of their employees to assist with Tsunami relief in various projects and seeking sanction of funds;
G.O.Ms.No.799 of 2006, Revenue Department, dated 08.12.2006, G.O.Ms.No.540 of 2007, Revenue Department, dated 19.09.2007 and G.O.Ms.No.753, Revenue Department, dated 31.12.2008.
13. I start by recording that the entitlement of the petitioner to project allowance is not in question. What is in question is only the method of computation of the entitlement and the quantum thereof. In this regard, G.O.Ms.No.111 which seeks to standardize the terms and conditions, including project allowance, applicable to employees deputed to other departments from one department, or to other State undertakings from Departments of the State Government, is relevant. The aforesaid G.O states that the quantum of project https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 allowance paid to those on deputation, shall be commensurate with the allowance paid to other similar employees in that area.
14. The relevant portion of G.O.Ms.No.111 is extracted below for sake of completion:
GOVERNMENT OF TAMILNADU Abstract Deputation - Deputation of Government Servants to State Owned Corporations/ Boards/Undertakings and to Co-operative Institutions, Autonomous Bodies, Universities, etc. – General terms and conditions - prescribed.
---------------------------------------------------------------------------------------------
----
Personnel and Administrative Reforms (FR. 11) Department G.O. Ms. No. 111 Dated 2-5-1994 Srimuga, Chithirai 19 Thiruvalluvar Aandu 2025 Read :
G.O. Ms. No. 461, Personnel and Administrative Reforms Department. dated 16-4-80.
*** ORDER:
In the Government Order read above, the Government have issued orders standardising the terms and conditions governing the deputation of Government Servants on Foreign Service terms under FRs. 110 to 114 to various Institutions.
2. As per FR. 110 (b), the Government sanction that deputation of A & B Group Officers on Foreign Service under FRs. 110 to 114 and Heads of Departments sanction the deputation of C & D Group Officers. The terms and conditions of deputation are indicated in each and every order deputing the Government Servants on Foreign Service terms.
3. It has been brought to notice that incorporating the terms and conditions in each and every deputation order would involve unnecessary scriptory work and it would be avoidable if general terms and conditions are prescribed and the individual deputation ordered to be governed by such general terms.
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4. The Government have examined the matter carefully and have decided to accept the above view. They accordingly now issue "Standardised terms and conditions" governing the deputation of State Government Employees to Tamil Nadu State Government Undertakings and to institutions other than State Government Undertakings such as Universities, Co-operative Institutions etc. as indicated below:
i. Pay/H.R.A./C.C.A.: While on Foreign Service, the officers shall draw the pay and allowances admissible to him in his post in the Government and the usual allowances, viz., Dearness Allowance, House Rent Allowance and City Compensatory Allowance at the rates admissible under the orders in force from time to time.
ii. Conveyance Allowance: The Foreign Employer may sanction conveyance allowance with reference to the needs of the job, at the rates applicable to a similar class of employee under the Foreign Employer.
iii. Project Allowance: If a Government Servant deputed to a Foreign Employer works in a project area and a project allowance is paid to the other similar employee in that area, such project allowance may be paid to the deputationist also.
..............’
15. The method and manner of computation of project allowance must be thus, seen as against the background, the spirit and intendment of G.O.Ms.No.111 of 1994. While it is the petitioner’s case that the eligibility to project allowance is 10% of the gross pay, as understood from the plain language of G.O.Ms.No.246 of 2007, the State would argue that the computation must be 10% of basic pay and dearness allowance only.
16. The State, in its effort to garner maximum assistance for Tsunami relief appears to have called for various State Departments to depute their personnel to engage in State sponsored Tsunami relief. Accordingly, several departments have deputed their employees, forwarding inter alia, recommendations for their pay, including the project allowance and the method https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 of computation thereof. While so, it appears that the State has been taking different stands in the cases of different departments in the matter of pay to the deputed personnel. The difference in approach may be illustrated by reference to three Government Orders circulated by the petitioner, all relating to Tsunami relief.
17. G.O.Ms.No.799, Revenue (NC.IV.1) Department, dated 08.12.2006 relates to such a proposal by the Director of Town Panchayats for deputation of its personnel to the Tsunami Emergency Assistance Project conducted jointly with the Asian Development Bank. Inter alia, project allowance has been computed at 10% of basic pay. The relevant portion of the G.O. is extracted below:
GOVERNMENT OF TAMILNADU ABSTRACT Tsunami – Relief and Rehabilitation – Tsunami Emergency Assistance Project (TEAP) – Execution of Schemes with the Asian Development Bank – Rehabilitation of Tsunami affected areas in Town Panchayats – Appointment of additional staff and Specialists for Directorate of Town Panchayats – personnel working in the Project Implementation Unit in the Directorate of Town Panchayats under Tsunami Emergency Assistance Project – Proposal for Project Allowance – approved by Empowered Committee – Amount Rs.9.23 lakhs – Sanctioned – Orders – Issued.
Revenue (NC.IV.I) Department G.O.Ms.No.799 Date: 08.12.2006 ............
............
............
ORDER:
https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 In the G.O. first read above, orders have been issued according administrative sanction for the implementation of the Tsunami Emergency Assistance Project (TEAP) with Asian Development Bank assistance at a cost of Rs.629.63 Crores for Restoration of livelihood of the Tsunami affected poor, rehabilitation of Tsunami damaged Roads and Bridges, Ports and Harbours, Restoration of Water Supply and Sanction, Rehabilitation of / up gradation of municipal and rural infrastructures and capacity building and implementation assistance.
2) In the G.O. second read above, the Government have constituted an Empowered Committee to clear the projects to be implemented with the Asian Development Bank assistance sanctioned in the G.O. first read above.
3) In the G.O. third, fourth and fifth read above sanction was accorded to appoint additional staff and Specialists for execution of schemes under the Asian Development Bank assisted Tsunami Emergency Assistance Project (TEAP) to the Directorate of Town Panchayats.
4) The Director of Town Panchayats submitted a proposal for sanction of Rs.9.23 lakhs to meet the expenditure towards sanctioning of Project Allowance at 10% of Basic Pay for the personnel working in the Project Implementation Unit in the Directorate of Town Panchayats under Tsunami Emergency Assistance Project (TEAP). The OSD(R&R) placed the said proposal before the Empowered Committee at its meeting held on 26.10.2006. The Committee approved the proposal.
5) The Government after careful examination, accept the decision of the Empowered Committee and accordingly sanction a sum of Rs.9.23 lakhs (Rupees Nine lakh twenty three thousand only) to meet the expenditure towards Project Allowance at 10% of Basic Pay for the personnel working in the Project Implementation Unit of Directorate of Town Panchayats already sanctioned in the Government Order’s third, fourth and fifth read above as detailed in the Annexure to this order. A sum of Rs.2,30,634/- may be sanctioned for three month from January 2007 to March 2007.
.................’
18. The Annexure to the above G.O reads as below, and though the number of posts sanctioned is set out in the Annexure to the G.O above, it is relevant to note that there is no amount or percentage of amount, sanctioned or specified in the Annexure as is the case with G.O.Ms.No.246 of 2007, as relevant to the petitioners’ case.
https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 Revenue (NC IV.1) Department (G.O.Ms.No.799, Revenue (NC.IV.1) Department, Dated: 08.12.06) ANNEXURE Sanctioned amount of annual expenditure for payment of project allowance Sl. Designation (Basic Project No. of Amount Amount No. Pay+DP)/ Scale Allowance/ post required/m required/ of Pay month @ sancti onth annum 10% of Pay oned (in Rs.) PIU 24750(12000-
1 2475 1 2475 29700
Coordinator 375-16500)
General
22800(10000-
2 Manager 2280 1 2280 27360
325-15200)
(Tech)
22000(Cons.
Livelihood
3 Pay)(8000-275- 2200 1 2200 26400
Specialist
13500)
Environmental 20250(8000-
4 2025 1 2025 24300
Specialist 275-13500)
Financial 20250(8000-
5 2025 1 2025 24300
Specialist 275-13500)
14000(Cons.
Community
6 Pay)(6500-200- 1400 4 5600 67200
Organizer
11000)
Assistant Exe. 20250(8000-
7 2025 7 14175 170100
Engineer 275-13500)
Assistant 16500(6500-
Engineer/ 200-
8 1650 14 23100 277200
Junior 11000)/12000(5
Engineer 500-175-8000)
8000(Cons.
Technical
9 Pay)/4000-100- 800 13 10400 124800
Assistants
6000
Manager(O& 16500(6500-
10 1650 1 1650 19800
M) 200-11000)
16500(6500-
11 Manager MIS 1650 1 1650 19800
200-11000)
Superintenden
12 14000 1400 1 1400 16800
t
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W.P. No.14394 of 2009
13 Accountant 8000 800 1 800 9600
14 Assistant 6500 650 2 1300 15600
Junior
15 5000 500 1 500 6000
Assistant
Data Entry 9000(4000-100-
16 900 5 4500 54000
Operator 6000)
3990(2500-55-
17 Driver 399 1 399 4788
2660)
Office 3990(2500-55-
18 399 1 399 4788
Assistant 2660)
Total 25528 57 76,878 9,22,536
Round to Rs.9.23 lakh
for three month Rs.2,30,634/-
S.Audiseshiah,
Secretary to Government
Section Officer
19. G.O.Ms.No.540, Revenue (NC.IV (1)) Department, dated 19.09.2007 relates to the sanctioning of Programme Coordinator, one each in twelve Coastal Districts in the cadre of Joint Director. The proposal for their appointment has come from the Rural Development and Panchayat Raj Department. The recommendation was for project allowance at 10% of basic https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 pay and dearness pay that has been accepted and accorded to the project officers.
20. The relevant portion of the G.O. is extracted hereunder:
GOVERNMENT OF TAMILNADU ABSTRACT Tsunami – Tsunami Emergency Assistance Project (TEAP) – Rural Development and Panchayat Raj Department – Sanction of Project Allowance to Project Officers, District Rural Development Agency functioning as Project Coordinators of Tsunami District Implementation Unit – Approved by the Sub-Committee of Empowered Committee – Orders – Issued.
Revenue (NC.IV (1)) Department
G.O.Ms.No.540 Dated 19.9.2007
Read:
............
............
ORDER:
In Government Order first read above Government have sanctioned one post of Programme Coordinator each in 12 Coastal Districts in the cadre of Joint Director in the scale of pay of Rs.12000-375-16500. However these posts were filled up only in Cuddalore, Kancheepuram and Pudukottai districts. In the light of experience in the field, it was found that there was lack of co-ordination between the Project Officer, District Rural Development Agency, Project-Coordinator, Tsunami District Implementation Unit and the field officers. This adversely affected the progress of the project. It was, therefore, felt that the Project Officer, District Rural Development Agency will have to function as Project-Coordinator, Tsunami District Implementation Unit also, so as to enable smooth implementation of this Programme.
2. Accordingly, Government in the letter third read above have clarified as follows:-
The Project Officers, District Rural Development agencies shall hold the post of Project Co-ordinators, Tsunami District Implementation Unit as Ex-Officio Project Co-ordinators.
........
........
........
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5.The Government, after careful examination, accept the recommendation of the Sub Committee and accord sanction for the Project Allowance at 10% of Basic Pay and Dearness pay to the Project Officers, District Rural Development Agencies in the 12 Coastal Districts who function as Project Coordinators at District Implementation Unit with effect from the date from which they have actually been functioning as Project Coordinators as per Government letter No.39543/CGS-II/2006, Rural Development and Panchayat Raj Department, Dated 14.12.2006.
....................’
21. G.O.Ms.No.753 of 2008 sanctioned 10% of project allowance to those employees deputed from the Tamil Nadu Slum Clearance Board. The project allowance is computed at 10% of basic pay plus dearness pay and the relevant portion of the G.O. read as follows:
GOVERNMENT OF TAMILNADU ABSTRACT Tsunami – Emergency Tsunami Reconstruction Project (ETRP) assisted by World Bank – Tamil Nadu Slum Clearance Board – Sanction of Project Allowance at 10% of Basic Pay and Dearness Pay to the staff working in the three Divisional Offices in Tamil Nadu Slum Clearance Board under World Bank assisted Emergency Tsunami Reconstruction Project (ETRP) - Approved by Sub-Committee – Orders – Issued.
Revenue (NC.IV (1)) Department
G.O.Ms.No.753 Dated 31.12.2008
Read: ............
............
ORDER:
In the G.O. first read above, the Government have approved three Divisional Offices and staff to implement the work of construction of tenements.
2. In the G.O. second read above, the Government have sanctioned 10% of project allowance to the staff of Tsunami Planning Co-ordination and Monitoring Cell in Tamil Nadu Slum Clearance Board.
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3. The Managing Director, Tamil Nadu Slum Clearance Board has sent a proposal to sanction the Project Allowance at 10% of Basic Pay plus Dearness Pay for all the staff working in the three Divisional Officers of Tsunami works under Emergency Tsunami Reconstruction Project (ETRP) assisted by World Bank in Tamil Nadu Slum Clearance Board from the date of issue of orders excluding those appointed on contract basis/ consolidated pay as detailed below:-
..........................
4. The Principal Secretary/ Officer on Special Duty (Relief and Rehabilitation) have placed the above proposal before the Sub-Committee at its meeting held on 15.10.2008. The Sub-Committee has approved the proposal.
5.The Government after careful consideration, accept the recommendation of the Sub-Committee and accord permission to Tamil Nadu Slum Clearance Board for the payment of Project Allowance at 10% of Basic Pay plus Dearness Pay to the staff working in the three Divisional Offices of Tsunami works under Emergency Tsunami Reconstruction Project (ETRP) funded World Bank in Tamil Nadu Slum Clearance Board as mentioned in paragraph 3 above from the date of issue of order for those who are on deputation only and not for those who are employed on contract basis.
.............
22. A perusal of the aforesaid four Government Orders, G.O.Ms.No.236 of 2007 included, would show that the State has adopted different methodologies when it comes to the computation of project allowance. However, one thing is clear as per G.O.111 of 1994, and that is that the allowance must be uniform across all members of the project team. No differences are envisaged as between whether the member is deputed from another department of the Government or contracted from elsewhere/outside. https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009
23. The case of the State, while not disputing eligibility to project allowance, is that those on deputation from the Fisheries Department are only entitled to 10% of basic pay and dearness allowance as project allowance, whereas those engaged on contract are entitled to 10% of consolidated pay. This argument cannot be countenanced in light of G.O.Ms.No.111 of 1994 wherein there is a clear mandate that the State assumes to itself, in ensuring consistency and uniform allowances to all the employees working in a particular area whether Foreign or domestic. Thus, an employee on deputation shall be treated on par with the other employees absorbed in that project, in this case, those on contract.
24. That apart, G.O.Ms.No.246 and the Annexures thereto, unambiguously compute the project allowance as 10% of gross pay in the case of all employees and no distinction is envisaged either in the G.O. or in the annexures in support of the State’s arguments that differential treatment is envisaged in the case of those deputed and the contract employees. The computation is not just theoretical, but reduced to figures as well. Thus, the total cost towards pay for one month has been computed at a sum of Rs.2,56,000/- and the Project allowance, at 10% of the gross pay for deputation, a sum of Rs.25,600/-.
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25. The language is crystal clear, that all members of the project team were entitled to project allowance at 10% of the gross monthly pay. The computation specifically uses the phrase, Project allowance 10% for deputation and the State cannot go back on the entitlement now and seek to curtail it to only 10% of basic pay, dearness allowance and personal pay. The argument advanced by the State thus fails.
26. In the light of the discussion as above, impugned order dated 13.07.2009 directing recovery of amounts paid towards project allowance to the petitioner is set aside and this Writ Petition is allowed.
30.09.2021 Index : Yes Speaking Order Sl/vs/kbs https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 To
1. The Commissioner of Fisheries, Tsunami Project Implementation Unit, Nandanam, Chennai – 6.
2. The Secretary to Government, Revenue Department, Fort St. George, Chennai – 5.
3. The Executive Engineer, TPDIU, Thoothukudi.
4. The Executive Engineer, Water Resource Organisation, Public Works Department, Quality Control Division, O/o CEWRO, Town Hall, Coimbatore – 1.
https://www.mhc.tn.gov.in/judis/ W.P. No.14394 of 2009 Dr.ANITA SUMANTH, J.
Sl/vs/kbs W.P. No.14394 of 2009 30.09.2021 https://www.mhc.tn.gov.in/judis/