Madras High Court
P.Vijajan vs State Of Tamil Nadu Rep By Its on 18 June, 2019
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD)Nos.112 to 144 of 204
and
W.M.P.(MD).Nos.1903 to 1933 of 2014
W.P.(MD).No.112 of 2014
P.Vijajan ... Petitioner
Vs.
1.State of Tamil Nadu rep by its
Secretary to Government,
Home Department,
Fort St.George,
Chennai-600 009.
2.The Director General of Police,
Chennai-600 004
3.The Superintendant of Police,
Tiruchirapalli District. ... Respondents
PRAYER: Writ Petition under Article 226 of the Constitution of
India, to issue a Writ of Mandamus, directing the respondents
herein to fix the pay of the petitioner on par with his junior
Mr.Eswaran (HC 1434) and grant all consequential benefits in the
light of the orders passed by the Hon'ble High Court of Madras, in
W.P.No.9527 and 9528 of 2006, dated 13.09.2010 which was
http://www.judis.nic.in
2
implemented by the Commissioner of Police, Coimbatore City in his
proceedings CPO No.1545/2011, C.No.Y3/23027/2011 and CPO No.
1566/2011, C.No.Y3/2307/2011 both dated 08.10.2011.
For Petitioner in
all cases : Mr.M.Baskaran
For Respondent
in all cases : Mr.D.Muruganandam
Additional Government Pleader
COMMON ORDER
The relief sought for in the present writ petition is to direct the respondents to fix the pay of the writ petitioner on par with his junior Mr.Eswaran (HC 1434) and grant all consequential benefits in the light of the orders passed by the Hon'ble High Court of Madras in W.P.No.9527 and 9528 of 2006, dated 13.09.2010, which was implemented by the Commissioner of Police, Coimbatore City in proceedings, dated 08.10.2011.
2.The grievances of the writ petitioners are that they were enlisted as Grade-II Police Constable and further promoted to the post of Grade-I Police Constable. All the writ petitioners had attained their respective age of superannuation and retired from service. This apart, all these writ petitioners were retired in the http://www.judis.nic.in 3 cadre of Sub-Inspector of Police. The further grievances of the petitioners are that one Mr.Eswaran (HC 1434), who was a junior to these writ petitioners, was granted with the benefit of fixation of pay and therefore, the pay of the writ petitioners also to be stepped up on par with from Mr.Eswaran. The writ petitioners states that the High Court passed an order on 13.09.2010 in W.P.(MD).Nos.
9527 and 9528 of 2006 as follows:
“9.Applying the said decision to the facts herein, admittedly, the petitioners had joined the services as early as 1976 and 1977 respectively as Grade II Constables and later they were promoted as Grade I Constables in 1993 and thereafter, they were promoted as Head Constables in 1999. As far as Eswaran and 34 others were concerned, they were originally appointed in Grade II Category III Constables in the Tamil Nadu Special Police Establishment and later they were transferred on Reserve as Grade II Police Constables Category II in the year 1993 and they were promoted as Head constables only in the year 2000. In the background of the above said facts, I do not find any justification in the contention of the respondents that the revision in the pay scales of Eswaran and others was maintained by giving effect to the order of the Tribunal. The said circumstances cannot be quoted as a circumstance http://www.judis.nic.in 4 to deny pay partiy to the petitioners herein who had entered the service as early as 1976 and 1977 respectively as Grade II Constables and later promoted as Grade I Constables in 1993 and as Head Constables in the year 1999.
10.Going by the above referred to decision of the Apex Court that there shall not be pay disparity and that the seniors cannot be paid less than their juniors, the petitioners' claim merits to be accepted. Consequently, the writ petitions are allowed holding that the petitioners are entitled to have their basic pay fixed on par with the basic pay of persons, who were transferred from Tamil Nadu Special Police Establishment to Coimbatore City Police by stepping up the basic pay of the petitioners.” It is further contended that the writ petitioners are also entitled for stepping up of pay on par with Mr.Eswaran,(HC 1434). Similar benefits was extended by the Commissioner of Police, Coimbatore in respect of the other candidate and therefore, the same benefits are to be extended to these writ petitioners also.
3.The learned Additional Government Pleader appearing on behalf of the respondents made a submission that the order dated 13.09.2010 passed in W.P.Nos.9527 and 9528 of 2006 relied on by http://www.judis.nic.in 5 the writ petitioners taken by way of an appeal by the State of Tamil Nadu in W.A.Nos.398 and 399 of 2013. The Hon'ble Division Bench of this Court passed a final order on 02.07.2013 and the relevant paragraphs of the Division Bench order are extracted hereunder:
“6.It is not in dispute that Eswaran and 34 others were members of the Tamil Nadu Special Police Subordinate Service and as per their option, they were transferred to Armed Reserve as Grade-II Police Constables in the year 1993 and prior to their transfer, got promotion to higher ranks in the Tamil Nadu Special Police Battalion as Naik and Havildar and consequently, they were in receipt of higher emoluments. Eswaran and others, on transfer to Armed Reserve Grade II Police Constables, were placed before the writ petitioners and their emoluments were less than the pay received by them while they were in Tamil Nadu Special Police Battalion and they in order to give them pay protection, their scale of pay was fixed higher. The Accountant General, Tamil Nadu has objected to the same and it was also accepted by the Government which in-turn ordered recovery of excess amount paid to Eswaran and others and the said proceedings were the subject matter of challenge in O.A.No.10317/1997 etc., batch before the Tamil Nadu Administrative Tribunal. The Tribunal, vide common order dated 06.04.2004, held that Eswaran and others have consented for serving in the lower cadre because they http://www.judis.nic.in 6 have been assured of pay protection and they did not anticipate in reduction in their emoluments and if they have been informed in advance about the pay reduction, they would not have opted for transfer at all. Therefore, the Tribunal found that the orders of recovery passed against them are not just and equitable and accordingly, set aside the proceedings ordering recovery and the said common order was also put to challenge before this Court, which also ordered for implementation of the above said common order passed by the Tribuna.
7.The Home (Pol.IX) Department passed orders in G.O.Ms.No.637 dated 03.08.2009 and in paras 6 and 7 it has been stated as follows:
"6. The Government have examined the proposal of Director General of Police in detail to implement the orders of the Tamil Nadu Administrative Tribunal in various Original Applications and the orders of the High Court, Chennai in various Writ Petitions and to cancel the instructions issued in Government letter second and third read above and to approve the directions issued by the Director General of Police in the memo first read above. Accordingly, the Government Order that the instructions issued in Government letter second and third read above be cancelled. The Government also order that the directions issued in the memo first read above to fix the pay of such police personnel at the appropriate place taking into account the pay last drawn in the Tamil Nadu Special Police Battalion and http://www.judis.nic.in 7 the difference as personal pay to give pay protection to such police personnel transferred to Districts Armed Reserve from Tamil Nadu Special Police Battalions, be approved as a special case.
7. The Director General of Police, Chennai is requested to take action accordingly. The Director General of Police, Chennai is also requested to instruct all the Unit Officers that Police Constables of Tamil Nadu Special Police coming to the local agreeing to serve in a lower category of Grade II Police Constables in the District Armed Reserve shall be paid only a salary befitting the lower ranking in future."
8. Ruling 2 of FR-22B and Ruling 2 of FR-27 stipulate that both the junior and senior officers should belong to the same cadre and the post in which they have been promoted or appointed should be identical and in the same cadre, so also in the case of pay in the lower and higher post. In the case on hand, as pointed out in the earlier paragraphs, Eswaran and others became Armed Reserve Grade II Police Constables on their request and prior to such transfer, they were promoted as Naik and Havildar and they were in receipt of higher emoluments and on transfer, it was found that the emoluments received by them are lower than the amount received by them as members of the Tamil Nadu Special Police Battalion and in order to give pay protection, their scale of pay were stepped up. It is pertinent to be point out at this juncture that Eswaran http://www.judis.nic.in 8 and others continue to be juniors to the writ petitioners in the seniority list.
9. Similar issue arose for consideration before the Hon'ble Supreme Court of India in Union of India and Others v. O.P.Saxena { (1997) 6 SCC 360 } and the Hon'ble Supreme Court of India has taken into consideration similar provisions and held that when the feeder post of respondents therein and that of the other respondents were different, the applicability of the principle of stepping up cannot apply.
10. A Division Bench of this Court in Union of India and Others v. Registrar, Central Administrative Tribunal and others [CDJ 2008 MHC 5189], after taking into consideration the various decisions rendered by the Hon'ble Supreme Court of India, held that junior drawing more pay than the senior will not constitute an anomaly; nor is it a result of the application of Fundamental Rule 22(I) (a)(1).
11. The Government has also decided for implementation of the common order passed by the Tribunal in O.A.Nos.10317/1997 batch dated 06.04.2004 and accordingly passed G.O.Ms.No.637, Home [Pol.IX] Department dated 03.08.2009 and in para 7 of the said Government order making it very clear that in future, it should be indicated to the persons who are opting for transfer that they shall be paid salary befitting the lower ranking persons.
12. This Court, in the light of the reasons assigned http://www.judis.nic.in 9 above, is of the considered view that the impugned common order allowing the writ petitions is unsustainable both on law and on facts and hence, it is liable to be interfered.
13. In the result, both these writ appeals are allowed and the common order dated 13.09.2010 made in W.P.Nos.9527 and 9528 of 2006 is set aside. Consequently, both the writ petitions are dismissed. However, in the circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
4.The Hon'ble Division Bench allowed the writ appeals and set aside the common order dated 13.09.2010 made in W.P.Nos.
9527 and 9528 of 2006. Thus, the very relief sought for in the present writ petitions cannot be granted by this Court, in view of the fact that the order passed in the writ petition on by the petitioners was set aside by the Hon'ble Division Bench of this Court on 02.07.2013. This being the factum, the benefit of stepping up of pay on par with one Mr.Eswaran cannot be granted to these writ petitioners and the order relied upon by the writ petitioners was set aside by the Division Bench.
http://www.judis.nic.in 10
5.Thus, these writ petitions are devoid of merits and the same stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
18.06.2019 Index:Yes/No Internet:Yes/No Ns To
1.State of Tamil Nadu rep by its Secretary to Government, Home Department, Fort St.George, Chennai-600 009.
2.The Director General of Police, Chennai-600 004
3.The Superintendant of Police, Tiruchirapalli District.
http://www.judis.nic.in 11 S.M.SUBRAMANIAM,J.
Ns W.P.(MD)Nos.112 to 144 of 204 and W.M.P.(MD).Nos.1903 to 1933 of 2014 18.06.2019 http://www.judis.nic.in