Madras High Court
S.Chandrasekar vs The Director Of Town Panchayat on 10 January, 2022
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P(MD)Nos.2205,etc., of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 10.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)Nos.2205, 3352, 15981, 15995, 16000, 16006, 16475,
16483, 16490, 16906, 16915, 16916, 16922, 16924, 16927,
16923, 16925, 17700, 19324, 19329, 19332, 19335, 19338, and
19341 of 2020 and 1286, 15988, 16917 of 2021
and
connected miscellaneous petitions.
W.P(MD)No.2205 of 2020
S.Chandrasekar ... Petitioner
Vs
1.The Director of Town Panchayat,
Office of the Director of Town Panchayat,
7th and 8th Floors,
Urban Administrative Office Campus,
Chennai – 600 028.
2.The Assistant Director,
Office of the Assistant Director
of Town Panchayat,
Nagercoi Division,
District Collectorate,
Nagercoil,
Kanyakumari District.
3.The Executive Officer,
Marungur Town Panchayt,
Marungur,
Kanyakumari District. ... Respondents
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W.P(MD)Nos.2205,etc., of 2021
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India for issuance of a writ of
Certiorarified mandamus, to call for the records pertaining
to the impugned order passed by the third respondent vide
his proceedings Na.Ka.No.179 of 2019, dated 02.01.2020 and
quash the same as illegal and consequently, forbear the
respondents from effecting recovery from the petitioner
without issuing show cause notice and in violation of the
guidelines issued by the Hon'ble Supreme Court in State of
Punjab and Others, etc., Vs. Rafiq Mah (White Wahser)
reported in AIR 2015 C 696 and for the other reliefs.
For Petitioner : Mr.G.Anto Prince
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General,
assisted by Mr.J.Ashok,
Additional Government Pleader
COMMON ORDER
These writ petitions have been filed as against the order of the Director of Town Panchayat, fixing the scale of pay of the petitioners lower than the existing scale of pay.
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2.The first batch of writ petitions in W.P(MD)Nos.15981 of 2020 etc.., is filed challenging the proceedings of Director of Town Panchayat in Na.Ka.No.1222/2020/A3, dated 07.10.2020, withdrawing the previous clarification issued in Na.Ka.No. 21256/2012/A3, dated 10.06.2013. The another batch of writ petitions in W.P.(MD)Nos.15934 of 2020 etc.., is filed challenging the proceedings of the Director of town Panchayat in Na.Ka.No.1222/2020/A3 dated 07.10.2020 and the consequential order passed by respective Executive Officer of the Town Panchayat implementing the orders of Director of Town Panchayat.
3.Since the issue involved in these writ petitions is one and the same, these writ petitions are heard together and disposed of by way of this common order.
4.The petitioners are either appointed as Watchman, Overhead Operator or Pump Operator, Helper, etc.., in the Basic Services of the respective Town Panchayat. The Government vide G.O.Ms.No.338 Finance (Pay Cell) Department dated 28.06.2010, redesignated their posts as unskilled employees and revised their scale of pay on par 3/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 with trade posts. Based on the audit objections, the Director of Town Panchayat vide his proceedings in Na.Ka.No.1222/2020/A3, dated 07.10.2010 revised the scale of pay of basic service and also ordered for recovery of the excess amount paid to the petitioners, from their monthly salary. In pursuance of the said proceedings, the respective Town Panchayats issued orders for recovery of amount and aggrieved over the same, the present writ petitions are filed.
5.The learned Counsel for the petitioners further submits that their scale of pay was fixed as per the recommendation of one man commission, which was accepted by the Government in G.O.Ms.No.338 Finance (Pay Cell) Department dated 26.08.2010 and the present revision is made after 10 years without even affording an opportunity of hearing to the petitioners. Therefore, according to these petitioners, these impugned orders in these writ petitions are liable to be set aside on the ground of violation of principles of natural justice. 4/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021
6.The learned Additional Advocate General appearing for the respondents submits that initially Town Panchayats were under the control of Rural Development Department and governed by the Tamil Nadu Panchayat Act 1958. Later, a separate Directorate of Town Panchayat was established vide G.O.Ms.No.828, Rural Development and Local Administration Department, dated 07.05.1981. Further, it was brought under the purview of Rural Development Department vide G.O.Ms.No.150, Rural Development (C1) Department, dated 01.10.2004. Then the village Panchayats were classified as Special Village Panchayats as per Sec.6(4) of the Tamil Nadu Panchayat Act, 1994 and hence Special Village Panchayats were reconstituted as Town Panchayats under the Tamil Nadu District Municipalities Act, 1920 in the year 2006. The Tamil Nadu Town Panchayats Establishment Rules were framed in the year 1998. As per these Rules, each Town Panchayat shall constitute a separate unit for appointment. The petitioners in all the writ petitions were appointed for the posts under Basic Services with required educational qualification of 8th standard pass. There is another category of employment, namely, Trade Post with technical qualification namely non-provincialised post of Pipeline Fitter Grade I, Water Supply Fitter, Pump Mechanic, Pump Operator, Tube Well Mechanic, Meter Reader, Electrician Grade I, Electrician Grade II, 5/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 Tractor Driver etc.., These Technical Posts/ Trade Posts/ non-provincialised posts require certain educational qualifications and certificates.
7.The learned Additional Advocate General further submits that the petitioners were appointed for the posts under the Basic Service only and the same does not require any technical qualification or any experience. The petitioners before this court are working either as OHT Operators or Helpers or Water Supply Watchmen. The petitioners were originally appointed vide G.O.Ms.No.72 Municipal Administration and Water Supply Department, dated 05.05.1998, on consolidated pay and subsequently, their services were regularised and they were brought under time scale of pay in the year 2006 vide G.O.Ms.No.60, Rural Development and Panchayats Department, dated 23.06.2006. He also produced a list of the writ petitioners, their mode of appointment, educational qualification and their nature of work and the same is extracted hereunder:
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8.The learned Additional Advocate General fairly submits that some of the employees, who were appointed on Basic Service were utilised in the Trade Posts depending upon the necessity and were allowed to continue in the post for some period. While implementing VI Pay Commission's recommendations, there were some issues and therefore, an official committee was constituted to examine the scale of pay and allowances of all category of employees of Government and Local Bodies. The Official Committee has recommended the revision of basic scale of pay of the employees on a “pay scale to pay scale basis”. The committee has also recommended that the anomalies in the basic scale of pay pointed out by various employees association shall be examined by the Government separately. Based on the recommendations, One Man Committee was constituted vide G.O.Ms.No.444 Finance Department dated 26.08.2010 and the One Man Committee recommended to rationalise the trade posts with revision in their scale of pay and change of nomenclature of their posts as 'unskilled' employees. The Government accepted the said recommendations vide G.O.Ms.No.338 Finance (Pay Cell) Department dated 26.08.2010, refixing the scale of pay of the Technical categories (Trade Posts) in all Government / Local Bodies uniformly) redesignating them as 'unskilled' and 'semiskilled employees'. The Government has also directed that 9/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 the trade posts with practical experience, ie., category of unskilled assistants shall become defunct as and when the existing incumbents vacates the posts. Further all future recruitments of the trade posts in all Government departments / local bodies shall be made to the post of Skilled Assistant Grade – II (Entry Level post) from among the I.T.I certificate holders. This Government order was misunderstood and communication was made on 10.06.2013 and all these petitioners were paid on par with the unskilled workers even though they are discharging the duty of Basic Service. This mistake was detected only during the audit objections in the year 2020 and subsequently clarification has been issued by the Director of Municipal Administration vide his letter dated 21.10.2020 and accordingly the respondent Panchayats have revised the scale of pay. According to the learned Additional Advocate General, the petitioners, who are working as watchman and overhead operators in the Basis Service were wrongly treated on par with unskilled employees in the Trade Posts and no salary was paid to the petitioners and therefore, the scale of pay wrongly fixed were revised and recovery was also ordered. The learned Additional Advocate General fairly accepts that in view of the decision of the Hon'ble Apex Court in Rafiq Masih (White washers case) there shall not be any recovery from the Group D Employees 10/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 and accordingly they are not insisting for recovery of the amount paid in excess.
9.This Court paid its anxious consideration to the rival submissions and perused the materials placed on record.
10.The petitioners, who were appointed several years ago, are working as a watchmen, overhead operators, pump operators, helpers etc.., and they are governed by the Basic services. While so, vide G.O.Ms.No.338, Finance (Pay Cell) Department dated 26.08.2010, the scale of pay of the petitioners were revised on par with the other grade posts as RS.2750-4400/- Rs.2650-4400/ Rs.2610-3540 / Rs.2550-3200 by treating them as unskilled category employees.
11.The petitioners are in class 3 categories with a minimum qualification of pass in 8th standard. The services like Pump Operator, Pump Mechanic, Meter Reader requires qualification of ITI with certain experience. Similarly, for the post of Pipe Line Fitter Grade-I and Water Supply Fitter, a certificate of competency granted under the authority of Government of Tamil Nadu is required. Similarly, for the post of 11/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 Meter Reader and Electrician Grade-I, qualification of SSLC along with the Certificate of ITI instrument Mechanic or a Certificate in Electric Wiring issued by polytechnic respectively is required. These categories of posts are termed as non Provincialised Posts.
12.Due to the vacancies, some of the workers in the Basic Services were utilized in the Non Provincialised Posts over a period of 10 years and above and the one man Commission recommended to rationalize the trade posts with the revision in their scales of pay with re-designation as Supervisors, Special Artisans, Skilled Assistant grade-I, Skilled Assistant Grade-II and Unskilled Trade Posts.
13.The Government, while accepting the said recommendations vide G.O.MS.No.338, Finance Department dated 26.08.2010 has also directed that the Posts with practical experience i.e., the category of Unskilled Assistants shall become defunct as and when the existing incumbents vacate the posts. Further, all future requirements to the Trade Posts in all the Government Departments / Local bodies shall be made to the post of Skilled Assistant Grade-II (entry level posts) from among the ITI 12/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 certificate holders. The one man Commission has recommended to designate those basic servants in Unskilled Trade Posts based on their experience in their respective trade posts and also recommended that the Unskilled Trade Posts shall become defunct as and when the existing incumbents vacate the posts.
14.Therefore the petitioners who are appointed as in basic Service as Overhead Tank Operators with 8th standard qualification are not entitled to the scale of pay on par with the skilled Assistant Grade II. However, their scales have been fixed on wrong understanding of the Government Order in G.O.Ms.No.338, Finance (Pay Cell) Department and the communication by the Director of Town Panchayat in his letter DTP Letter Roc.No.21256/2012/A3 dated 10.06.2013.
15.The director of Local Fund Audit has pointed out the anomaly that these other Trade Posts (Unskilled) could not be treated as Technical Posts as they do not involve any Technical Skill and qualification and therefore higher scale of pay could not be allowed to continue to such non technical categories. Accordingly, the Director of Municipal Administration vide his letter dated 10.06.2013 detected the other Trade Posts in the 13/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 pre revised scale pay of Rs.2750/- 4400 Rs.2650-440/- Rs.2610-3540/ Rs.2550-3200 redesignated as Unskilled, viz., Helper (Street Light Maintenance), Helper (Water Supply), OHT Operator, Motor Operator, Watchman, Water Supply Maintenance Operator, Hand Pump Maintenance, Pump Cleaner as per the Government Order in G.O.Ms.No 234, Finance (Pay cell) Department, dated 01.06.2009. Even thereafter, the petitioners were paid a grade pay of Rs.1900/- and therefore the grade pay of the petitioners fixed under the proceedings dated 10.06.2013 were cancelled by proceedings dated 07.10.2020 and directed to revise the scale of pay with effect from 01.10.2020. However, as per the guidelines issued by the Hon’ble Apex court on recovery of excess pay in Rafiq Masih (White washers case), the Director by the impugned letter dated 21.10.2020 directed to revise the scale of pay, but not to recover the excess pay, since the petitioners are working in the class D service.
16. A similar writ petition filed in W.P(MD)No.669 of 2018 was disposed of by this Court in the following terms:
“A water supply Assistant of Palamedu Town Panchayat Challenged similar order of recovery allegedly paid in excess of him, was challenged in WP(MD)No.669 of 2018. That the writ Petition disposed 14/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 as follows, For a decision on whether the re-fixation is proper, the 2010, 2012 and 2015 proceedings are to be reconciled. A copy of audit objection has not been placed on file. However, proceedings dated 21.05.2015 refers to the objection to the effect that certain posts classified under the category ‘other trade posts’ (unskilled) in the annexure to the 2012 letter cannot be considered as technical posts as they do not involve technical skill and therefore, higher category of pay cannot be granted to such categories.
17. A division Bench of this court in W.A(MD)Nos.640 to 645 of 2021, dated 01.07 2021 has dealt with the similar issue and has held as follows:
“1.Considering the fact that the pay fixation was only in respect of persons manning technical posts with ITI qualification and the benefit was granted by the Government which was implemented by the appellant Municipality, by virtue of it, the revised scale of pay was given notionally with effect from 01.01.2006 with monetary effect from 01.08.2010 and admittedly writ petitioners were not holding any technical posts, they were Tank Watchman, Tank Cleaner, Park watchman and Bus Stand Watchman etc., which are all admittedly non technical posts and the respondents-writ 15/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 petitioners cannot be heard to say that despite not possessing ITI qualification, they will be entitled to revised scale of pay. Therefore, even though the recovery may cause financial difficulties to the respondents-writ petitions, taking note of the fact that more than fifty percent of the amount had already been recovered from the respondents-writ petitioners, we find that the orders of recovery ought not to have been interfered by the learned Writ Court.
2. The Municipality is operating the public funds and tax-payers money. They discharging Constitutional Obligation cast upon them and they are bound to render services to all citizens without any discrimination.
Therefore, to state that the Municipality should absolve the loss can never be accepted. There can be no universal application of the principle that every wrong payment though deducted later can never be recovered from the person who enjoyed the unintended benefit, as rightly pointed out by the learned counsel appearing for the appellant that it would set a very bad precedent. Apart from that the Municipality can never recover the amount and it will be always shown as outstanding and this will have other cascading effect which would not be in public interest.
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3. Therefore, for all the above reasons, we are of the clear view that the learned Writ Court committed an error in interfering with the order of recovery.
4. In the result, these Writ Appeals are allowed and the writ petitions are dismissed and the order impugned in the writ petition is held to be valid.”
18.The doctrine of equal pay for equal work depends upon various factors such as nature of work, requisite qualification, source and manner of appointment etc..
19.Admittedly the petitioners are not working in any Trade Posts. However, the Grade pay was fixed in the year 2013 based on G.O.Ms.No.338, Finance(Pay Cell) Department and some of the similarly placed persons, who were working in the Trade Posts treated as unskilled workers were provided with the Grade Pay equivalent to Skilled Assistant Grade II. Only at a later point of time, this mistake has been identified by the local fund audit and the same was corrected by the impugned proceedings. This impugned order passed by the Director is also concurred by the Government. The Petitioners had never worked in any Trade Posts and therefore, their posts cannot be treated as skilled Trade Posts and therefore they are not entitled to a Grade Pay equivalent to other trade posts.
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20. Accordingly, the writ petitions are partly allowed that there shall not be any recovery of the amount, which has already been paid to the petitioners. However the orders impugned in these Writ petitions are held to be valid. No costs. Consequently, connected miscellaneous petitions are closed.
10.01.2022
Index : Yes / No
Internet : Yes / No
Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To
1.The Director of Town Panchayat, Office of the Director of Town Panchayat, 7th and 8th Floors, Urban Administrative Office Campus, Chennai – 600 028.
2.The Assistant Director, Office of the Assistant Director of Town Panchayat, Nagercoi Division, District Collectorate, Nagercoil, Kanyakumari District.
3.The Executive Officer, Marungur Town Panchayt, Marungur,Kanyakumari District.
18/20 https://www.mhc.tn.gov.in/judis W.P(MD)Nos.2205,etc., of 2021 B.PUGALENDHI, J.
W.P(MD)Nos.2205, 3352,
15981, 15995, 16000,
16006, 16475, 16483,
16490, 16906, 16915,
16916, 16922, 16924,
16927, 16923, 16925,
17700, 19324, 19329,
19332, 19335, 19338,
and 19341 of 2020
and 1286, 15988 and
16917 of 2021
10.01.2022
19/20
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W.P(MD)Nos.2205,etc., of 2021
20/20
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