Madras High Court
K.Shanmugam vs The State Of Tamil Nadu on 18 September, 2019
Author: S.S.Sundar
Bench: S.S.Sundar
W.P.(MD).No.16181 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.09.2019
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.16181 of 2013
and M.P.(MD).No.2 of 2013
K.Shanmugam ... Petitioner
vs.
1.The State of Tamil Nadu,
Rep, by its Secretary,
Home Department,
Fort St. George, Chennai.
2.The Director of Fire and Rescue Services,
Chennai – 600 008.
3.The Divisional Officer,
Fire and Rescue Services,
Tiruchirappalli Division, Tiruchirappalli.
4.The Accountant General (A&E)
Office of the Accountant General,
Chennai – 18. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for
the issuance of Writ of Certiorarified Mandamus, calling for the records
relating to the Impugned order passed by the 3rd respondent in his
proceedings in Na.Ka.No. 300/Aa1/2010 dated 22.03.2013 and quash the
same and consequently direct the respondents to pay the petitioner's
increment arrears from 01.11.2007 to till date by revising and re-fixing
the petitioner's pension at Rs.4,307/- as per his last drawn salary within
the time frame that may be stipulated by this Hon'ble Court.
http://www.judis.nic.in
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W.P.(MD).No.16181 of 2013
For Petitioner : Mr.T.Senthil Kumar
For Respondents : Mr.D.Muruganantham for R1 to R3
Additional Government Pleader
Mr.P.Gunasekaran for R4
ORDER
This writ petition has been filed for issuance of Writ of Certiorarified Mandamus, calling for the records relating to the Impugned order passed by the 3rd respondent in his proceedings in Na.Ka.No. 300/Aa1/2010 dated 22.03.2013 and quash the same and consequently direct the respondents to pay the petitioner's increment arrears from 01.11.2007 to till date by revising and re-fixing the petitioner's pension at Rs.4,307/- as per his last drawn salary.
2.The petitioner was appointed as Fireman on 29.06.1975 in the Fire and Rescue Service Department. The petitioner retired from service on 31.10.2007. Though the petitioner rendered more than 32 years of service, it is seen that the petitioner continued in the same post for 32 years. When the petitioner was in service, the Government issued G.O. (Ms.).No.510, Home (Police-XVII) Department, dated 20.06.2005 to allow upgradation to the Fireman after completion of certain years of service. It was made clear that the upgradation is not a promotion as it does not involve any change of work load or responsibility. Even after upgradation, the person who gets the benefit of upgradation is required to serve in the same rank in the sanctioned strength as it was before upgradation. http://www.judis.nic.in 2/10 W.P.(MD).No.16181 of 2013 However, the individual was entitled to one increment.
3.The third respondent by proceedings dated 04.08.2015, upgraded the petitioner from Fireman Driver to Driver Mechanic as per G.O.Ms.No.510. As a result, the petitioner was paid the annual increment of Rs.100/- upon upgradation till he attained superannuation on 31.10.2007. Based on the last drawn salary of the petitioner, the petitioner's pension was fixed at Rs.4,307/- per month. It is not in dispute that the petitioner was drawing the salary of Rs. 5,500+215+40+2858. However, though the pension was fixed at Rs. 4,307/- per month, it is stated that the petitioner was paid only a sum of Rs.4,232/- per month as pension. The petitioner presumed that the small difference in pension was on account of deduction of the increment amount of Rs.100/-. The increment that was allowed to the petitioner, on account of upgradation was deducted for arriving at the amount of pension to the petitioner. The petitioner therefore submitted a representation, dated 05.05.2008 to the third respondent to pay his pension at Rs.4,307/- per month based on the petitioner's last drawn salary and without deducting the increment paid to the petitioner upon upgradation. Despite representation, there was no response from the respondents.
http://www.judis.nic.in 3/10 W.P.(MD).No.16181 of 2013
4.Therefore, the petitioner earlier filed a writ petition in W.P. (MD).No.507 of 2010 for issuance of Writ of Mandamus directing the respondents to revise and refix the petitioner's pension at Rs.4,307/-. The said Writ petition was disposed by order, dated 20.12.2012 with a direction to consider the petitioner's representation on merits and in accordance with law. Thereafter, by the impugned order, the petitioner's representation was rejected by the third respondent on 22.03.2013. Hence, the above writ petition is filed.
5.The learned counsel for the petitioner submitted that by G.O.Ms.No.510 Home (Police – XVII) Department, dated 20.06.2005, a benefit is conferred on every individual Fireman who are serving in the same Grade, for stagnation in the same post without any promotion or other benefits. The benefit conferred by granting one increment is in addition to the annual increment which is as per service conditions. Since the upgradation was in view of stagnation of petitioner and others in the same post for a long number of years, the benefit of upgradation by giving an incentive cannot be treated as promotion so as to avoid the benefit accrued to every employee who gets increment every year.
6.The learned counsel for the petitioner further upon the communication sent by the third respondent to the fourth respondent, http://www.judis.nic.in 4/10 W.P.(MD).No.16181 of 2013 dated 14.11.2008, and submitted that the third respondent understood the scope of the Government order and the entitlement of the petitioner. The said communication reads as follows:
@jpUr;rpuhg;gs;spf; nfhl;lk;. jpUr;rp jPaizg;g[?kPl;g[g;
gzp epiyaj;jpypUe;J 31/10/2007 gp/g taJ
Kjph;t[ fhuzkhf Xa;t[ bgw;w juk; cah;j;jg;gl;l
a/f/x/3991 nf/rz;Kfk; vd;gtuJ ,ay;ghd gjtp
jPaizg;g[ thfdk; Xl;o (oiuth;) MFk;/ juk;
cah;j;jg;gl;l gjtp juj;jpy; gzpg[hpa[k; jdpg;gl;l eghpd; gjt[ cah;t[ njf;f epiyia ePf;f. mj;jdpg;gl;l eghpd;
juj;ij kl;Lnk cah;j;JtJ MFk;/ jPaizg;g[j;Jiw
gzpahsh;fSf;F ePz;l fhykhfpa[k; gjtp
cah;t[ fpilf;fhky; xnu gjtpapy; ,Ug;gjhf
nfhhpf;iffs; bgwg;gl;ljpd; mog;gilapy;. ,j;Jiw
gzpahsh;fSf;F kl;Lk; Fwpg;gpl;l tUlk; xnu gjtpapy;
gzp Koj;jpUe;jhy; mth;fSf;F xnu xU Cjpa cah;t[ kl;Lk; tH';fp. mth;fsJ bgaiu rw;W khw;wp (cjhuzkhf jPaizg;nghh; Xl;o gjtpapy; 15 Mz;L gzp Koj;jth;fSf;F. juk; cah;j;jg;gl;l ae;jpu fk;kpah; Xl;o vd;W miHf;fyhk;) vd Miz bgwg;gl;lJ/ Mdhy; ,J (1) gjtp cah;t[ fpilahJ (2) mtuJ tHf;fkhd Cjpa cah;t[ njjp khwhJ (3) gjtpapy; mjpf mjpfhuk; fpilahJ (Higher Responsibility) (4) tHf;fkhd gjtpapy; bra;af;Toa ntiyia bjhlh;e;J bra;thh;/ (5) ,jw;fhf Cjpa eph;zak; vJt[k; bra;ag;gLtjpy;iy/ (tHf;fkhd Cjpa tpfpjj;jpy; xU go Cjpak; kl;Lk;) tH';fg;gLk;/ ,jw;fhd Mizapd;
efy; ,izf;fg;gl;Ls;sJ/
2)Mfnt ghh;it (4),y; fz;l j';fsJ
foj;jpy; bjhptpj;Js;sJ nghy ,J gjtp
cah;t[ fpilahJ/ gzpapYk; khWjy; vJt[k; ,y;iy/
jPaizg;nghh; Xl;o gjptpapnyna bjhlh;e;J
gzpg[hptjhYk; Kiwahf gjt[ cah;t[ Kjepiyg;go fpilf;Fk; rkak; gjtp cah;t[ njjp khWglhJ/ vdnt ,th; filrpahf bgw;w Cjpaj;ij (Fwpg;gpl;l fhyj;jpw;F) gpoj;jk; bra;a ntz;oa epiy vHtpy;iy.
3) vdnt nkw;go gzpahsh; filrpahf bgw;w Cjpaj;jpw;F jpUj;jpa Xa;t{jpak; eph;zak; bra;J Miz tH';FkhW gzpt[ld; nfl;Lf; bfhs;fpnwd;/@
7.However, the third respondent by the impugned order has http://www.judis.nic.in 5/10 W.P.(MD).No.16181 of 2013 stated that the petitioner is not entitled to the regular increment within a period of one year from the pay revision. The contents of the impugned order is contrary to the earlier order passed by the third respondent.
8.The learned Government Pleader appearing for the respondents 1 to 3 and the standing counsel for the fourth respondent made a submission that the petitioner who has been given an incentive by virtue of upgradation is not entitled to any increment within a period of one year. The counsels appearing for the respondents have not relied upon any specific rule. The incentive that was granted to the petitioner on account of upgradation is a benefit conferred on the petitioner and others due to stagnation and the petitioner's contention is acceptable. The position was accepted by the third respondent himself in his prior communication, dated 14.11.2008. Having taken a stand admitting the case of petitioner in the prior proceedings, the one line order passed by the third respondent, dated 22.02.2013, is improper. There is total non application of mind and no valid reasons are stated by the third respondent before denying the benefit of upgradation and its logical impact in the pay band of the petitioner and others. G.O.Ms.No.510, dated 20.06.2005 was issued by the Government on the basis of several representations and grievance of the work force. http://www.judis.nic.in 6/10 W.P.(MD).No.16181 of 2013
9.As per G.O.Ms.No.510, upgradation was granted to 1120 persons who are working in the post of Fireman or Fireman Driver. The Government after accepting the proposal of the Director, Fire and Rescue Services, granted a notional promotion to the post which was not sanctioned. It is seen that the persons who are working as Fireman for a period of twenty years and above were upgraded to the post of Leading Fireman which is not a promotional post carrying any separate salary. Similarly, the petitioner who was working as Fireman Driver was upgraded to a post called Driver Mechanic after he completed 15 years of service. Along with petitioner, 280 persons who are earlier working as Fireman Driver were upgraded. The Government sanctioned an additional recurring expenditure of Rs.20,01,000/- per annum towards payment of the difference in pay and allowance of a person of Fire and Rescue Service Department to be upgraded to a higher post carrying same salary as per the Government Order. The upgradation only carries an additional increment apart from the regular increment as per service conditions. By virtue of the impugned order, the benefit that was conferred by upgradation to the petitioner is sought to be taken away.
10.The contention of respondent that the petitioner was promoted by giving one increment and that he is not entitled for an annual increment before completion of one year from the date of http://www.judis.nic.in 7/10 W.P.(MD).No.16181 of 2013 upgradation cannot be accepted. For the reason that the incentive attached to upgradation is a special privilege that was extended to a class of persons and the respondents cannot take away the benefit on a wrong interpretation of the objects behind G.O.Ms.No.510 dated 20.06.2005.
11.The third respondent though had taken a correct stand in his earlier communication, dated 14.11.2018, has passed the impugned order without an application of mind.
12.In such circumstances, this Court is inclined to allow this petition as the petitioner is entitled to the relief as prayed for.
13.As a result, this writ petition is allowed and the impugned order passed by the 3rd respondent in his proceedings in Na.Ka.No. 300/Aa1/2010 dated 22.03.2013 is quashed. The third respondent is directed to revise and refix the petitioner's pension as per his last drawn salary including the incentive by upgradation within a period of three weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
18.09.2019 Index : Yes / No Internet: yes / No TM http://www.judis.nic.in 8/10 W.P.(MD).No.16181 of 2013 To
1.The Secretary, Home Department, Fort St. George, Chennai.
2.The Director of Fire and Rescue Services, Chennai – 600 008.
3.The Divisional Officer, Fire and Rescue Services, Tiruchirappalli Division, Tiruchirappalli.
4.The Accountant General (A&E) Office of the Accountant General, Chennai – 18.
http://www.judis.nic.in 9/10 W.P.(MD).No.16181 of 2013 S.S. SUNDAR, J., TM W.P.(MD).No.16181 of 2013 18.09.2019 http://www.judis.nic.in 10/10