Madras High Court
K.Gowran vs The State Of Tamilnadu on 24 January, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.01.2013 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.Nos.14977, 15614 to 15616 of 2011 and W.P.NO.1231 OF 2013 1. K.Gowran 2. P.M.Chinnasamy .. Petitioners in W.P.NO.14977/2011 A.Kulandaisamy .. Petitioner in W.P.NO.15614/2011 V.Ramasamy .. Petitioner in W.P.NO.15615/2011 C.Rajendran .. Petitioner in W.P.NO.15616/2011 B.Kalaivani .. Petitioner in W.P.NO.1231/2013 Vs. 1. The State of Tamilnadu rep.by the Secretary Handlooms, Handicrafts, Textiles and Khadi Department Fort St.George, Chennai-9. 2. The Director Department of Sericulture Annaimedu Salem 3. The Assistant Director Sericulture Department Dharmapuri 4. The Assistant Director Sericulture Department Pennagaram .. Respondents in W.P.NO.14977/2011 1. The State of Tamilnadu rep.by the Secretary Handlooms, Handicrafts, Textiles and Khadi Department Fort St.George, Chennai-9. 2. The Director Department of Sericulture Annaimedu Salem 3. The Assistant Director Sericulture Department Tiruchirapalli .. Respondents in W.P.NO.15614/2011 1. The State of Tamilnadu rep.by the Secretary Handlooms, Handicrafts, Textiles and Khadi Department Fort St.George, Chennai-9. 2. The Director Department of Sericulture Annaimedu Salem 3. The Assistant Director Sericulture Department Kollati 635 107 Krishnagiri District .. Respondents in W.P.NO.15615/2011 1. The State of Tamilnadu rep.by the Secretary Handlooms, Handicrafts, Textiles and Khadi Department Fort St.George, Chennai-9. 2. The Director Department of Sericulture Annaimedu Salem 3. The Assistant Director Sericulture Department Tiruchirapalli .. Respondents in W.P.NO.15616/2011 1. The State of Tamilnadu rep.by the Secretary Handlooms, Handicrafts, Textiles and Khadi Department Fort St.George, Chennai-9. 2. The Director Department of Sericulture Annaimedu Salem 3. The Assistant Director Sericulture Department Vaniyambadi Vellore District .. Respondents in W.P.NO.1231/2013 Prayer in W.P.Nos.14977 and 15614 to 15616 of 2011: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records on the file of the 1st respondent in connection with the order passed by him in G.O.Ms.No. 25/Handloom Handicrafts Textiles and Khadi (G2) Department dated 23.2.2010 to the extent of fixing the pay of lesser than that of the pay already received by the petitioners on daily wages basis and not fixed the retirement age of 60 years and quash the same and direct the respondents to pay atleast the same amount of pay received by them only daily wages and fix atleast the age of 60 as the age of superannuation as done in the case of similarly situated employees of other departments viz. Anganwadi Workers Noon-Meal organizers and the candidates fallen under the Tamilnadu Basic Service. Prayer in W.P.NO.1231 of 2013 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the Government Letter No.5626/G2/2010-4 dated 20.6.2011 issued by the 1st respondent and quash the same and direct the respondents to allow the petitioner to retire from service on attaining the age of 60 years as per FR 56(i).. For Petitioner in all Writ Petitions :: Ms.Lesi Saravanan For Respondents in all Writ Petitions :: Mr.P.S.Shivashanmuga Sundaram, A.G.P. COMMON ORDER
All these Writ Petitions were directed to be posted on being specially ordered by the Hon'ble Acting Chief Justice vide order dated 22.1.2013.
2. W.P.No.1231 of 2013 is yet to be admitted. Therefore, this Court directs Mr.L.P.Shivashanmuga Sundaram, Additional Government Pleader to take notice for the respondents. In other Writ Petitions, where similar claim has been made, counter affidavits have been filed.
3. The petitioners herein were originally working as daily rated workers in the Sericulture Department for more than 10 years. The State Government on being apprised of the number of employees are working for more than 10 years, issued a G.O.Ms.No.25, Handloom, Handicrafts, Textiles and Khadi Department dated 23.2.2010. By the aforesaid order, the State Government granted regularisation of 520 workers in permanent posts. For the purpose of their regularisation, relaxation was also made as per Rule 4 of the Tamilnadu Basic Service Rules, wherein direct recruitment under the basic service will have to be made by calling names from the Employment Exchange. Therefore, it stated that relaxation has been made and appropriate posting has been given till they reach the age of superannuation or till the date of death, whichever is earlier.
4. Even though their service was regularised, the services in which they will come into operate is not specified and in terms of their pay, the State Government created revised scale of pay of Rs.2500-5000 + Grade pay of Rs.500/- and their pay has been fixed in the above scale of pay from the date of G.O.
5. Pursuant to the said G.O, the petitioners's service has been regularised and they were drawing salary as fixed by the State Government referred to above. When the petitioners reached the age of 58 years, they were sought to be retired by the Department, which gave rise to Writ Petitions filed by different employees.
6. In W.P.No.14977 of 2011, the petitioners contended that they should have retired at the age of 60 years as in the case of Anganwadi Workers and Noon Meal Organizers, who come under the basic service. In the said Writ Petition, Notice of Motion was ordered. Pending the Notice of Motion, it was stated that since they are drawing lower scale of pay, there will be an interim injunction in their favour. On notice, the 3rd respondent, namely Assistant Director of Sericulture has filed counter affidavit dated 11.07.2011.
7. It is subsequent to the said Writ Petition, W.P.NOs.15614 to 15616 of 2011 came to be filed claiming identical relief. When these three Writ Petitions came up on 30.6.2011, an order of interim injunction was granted for a limited period. Subsequently when there was a complaint that the workers were not taken back, by an order dated 15.7.2011, this Court directed to take back the workers in service pending the Writ Petition. Subsequently, when the workers were taken back to service by order dated 22.7.2011, this Court directed that their service should not be interfered with until further orders.
8. Thereafter, the last Writ Petition, namely W.P.No.1231 of 2013 came to be filed challenging an order dated 20.6.2011 passed by the State Government, wherein the proposal sent by the Commissioner for Sericulture (Development) was negatived by the State Government. In the said communication, it was stated that regularisation was effected by the State Government in terms of G.O.Ms.No.25 Handlooms, Handicrafts, Textiles and Khadi Department dated 23.2.2010. Even though the employees who come under the provisions of the Tamilnadu Basic Service were allowed to retire at the age of 60 years, for the present petitioners whose service was regularized in terms of the G.O, no Special Rules have been created and if the proposal of the Commissioner is accepted, it is likely to create different claims by different sections and therefore, the proposal was negatived. It is only when the said Writ Petition came up, all the connected Writ Petitions were grouped together and posted before this Court as noted already.
9. The contentions raised by the petitioner were two-fold. Firstly, when they were made regular Government servants in terms of the G.O, no retirement age has been fixed and they have not been shown under which category they will be fixed. Secondly, the pay fixed in respect of the regularised employees were admittedly lower than the basic pay available to the persons working under the Tamil Nadu Basic Service. While in respect of the persons working under the Basic Service, their pay was fixed in the scale of pay of Rs.4800-10000 plus Rs.1300 Grade pay, the petitioners' total salary was only betweeen Rs.4500 and 5000 and they were lowest in the category of Government Servants working in the State considering the scale of pay fixed.
10. Reference was made to the Fundamental Rules, more particularly, Rule 9-A, wherein 'basic service' is defined and it includes all service shown in the said Sub Rule unless declared by Government to be superior service. The basic service includes a) Service as peon, head peon, chobdar or duffadar, b) Service in posts the pay of which does not exceeed Rs.720/- (at the time of G.O..Ms.1071, P&AR Department dated 31.10.1986), c) Service in posts in the Raj Bhavan household establishment. The State Government had also issued clarification in G.O.Ms.No.3580, LA dated 21.9.1937 and G.O.Ms.No.320, Finance dated 8.5.1930, wherein it is stated that the question whether a Government servant is in superior or basic service should be decided with reference to the pay actually drawn by the Government servant at the time.
11. Ms.Lesi Saravanan, learned counsel for the petitioners also referred to the fact that when Official Committee of 2009 recommended the scales of pay for various posts, pursuant to the Sixth Central Pay Commission, the State Government vide G.O.Ms.No.234, Finance (Pay Cell) Department dated 1.6.2000 had fixed the salary for Noon Meal Organizers and Anganwadi Workers and their salary was fixed at Rs.2500-5000+Rs.500/-. The petitioners were also given the same scale of pay. In respect of those workers, their retirement age is 60 years. Hence, there is no need to discriminate the petitioners since they were drawing the lowest pay than the basic servants' pay. Merely because in the G.O, by which their services were regularized, their retirement age is not indicated, as per FR.9, their service must be treated as basic service.
12. In response to the same, in the counter affidavit filed by the respondents, it was agreed that their retirement age was not specifically mentioned in the regularisation G.O, but it it was contended that they do not come under the Basic Service and the retirement age of 60 years will not be applicable to them. It is also stated that Anganwadi Workers and Noon Meal Organizers also do not come under the Tamilnadu Basic Service. Apart from stating that no upper age of retirement is fixed in the order regularising their service, the respondents have not come out with specific stand as to whether the petitioners can be fitted as basic service.
13. The Fundamental Rule as well as the Government Order framing the Rule clearly says that the scales of pay to a particular post will be a relevant criteria for determining whether a person is coming under the superior service or under the basic service.
14. In the present case, as agreed in the counter affidavit, the State Government fixed the pay lower than the scale of pay available to basic service, certainly they will be treated either under the basic service or below the basic service. It cannot be said that the petitioners are coming under the superior service, considering the scale of pay fixed to them. Since the Government has admittedly fixed the sale of pay to the petitioners below the persons working under the basic pay, it has to be taken that they are also coming under the basic service or something below the basic service. If the employees under the basic service are entitled to get retired at the age of 60 years, there is no reason for the persons like the petitioners who are drawing scale of pay lesser than the pay of the basic servants, to reject their contention that they should be retired at the age of 60 years, unless the petitioners' service was declared as superior service. When their pay is fixed below the pay of the basic service, they belong to basic service.
15. Therefore, it is hereby declared that the petitioners are entitled to have retired at the age of 60 years. The stand taken by the State Government vide Government Letter dated 20.6.2011 that if such a claim is conceded, there is likelihood of similar claims coming from other Section, is only to be rejected. Insofar as any claim is made by similarly placed persons, then the Government will have to consider those claims as per the existing Rules and also as considered in the present cases and their claims cannot be rejected because the petitioners' claim was accepted, especially when their services were regularised and they were drawing pay lesser than the basic service.
16. Hence, all the Writ Petitions stand allowed. Further the impugned Government Letter dated 20.6.2011 will stand set aside. The respondents are directed to retain the petitioners in service until they reach the age of 60 years. No costs. The connected Miscellaneous Petitions are closed.
24.01.2013 Index:Yes/no Internet:Yes/no ajr (Note: Issue the order copy on 28.1.2013) K.CHANDRU,J ajr To
1. The State of Tamilnadu rep.by the Secretary Handlooms, Handicrafts, Textiles and Khadi Department, Fort St.George, Chennai-9.
2. The Director Department of Sericulture Annaimedu, Salem
3. The Assistant Director Sericulture Department Dharmapuri
4. The Assistant Director Sericulture Department Pennagaram.
5. The Assistant Director Sericulture Department Tiruchirapalli
6. The Assistant Director Sericulture Department Kollati 635 107 Krishnagiri District
7. The Assistant Director Sericulture Department Vaniyambadi Vellore District W.P.Nos.14977, 15614 to 15616 of 2011 and 1231 OF 2013 24.01.2013