Madras High Court
M.Karunanithi vs Https://Www.Mhc.Tn.Gov.In/Judis on 10 July, 2023
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
2024:MHC:5715
2024:MHC:5715
Writ Appeal No.692 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 10.07.2023
CORAM
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR. JUSTICE K.KUMARESH BABU
Writ Appeal No.692 of 2018
1. M.Karunanithi
2. T.Sivagnanam
3. G.Pitchai
4. K.Rangarajan
5. P.Jagadesan
6. J.Jalaja
7. S.Vasantha
8. D.Esther
9. S.Deivasigamani
10.P.Rajendran
11. V.Ramar
12. K.Kannan
13. V.Vedagiri
14. P.Krishnaveni
15. P.Thangaraj
16. I.Natarajan
17. K.Govindan
18. S.Chandran
19. O.K.Perumal
20. P.K.Perumal
21.C.Loganathan
22. G.Manickam
23. N.Sekar
24. C.Duraisamy ... Appellants/ Petitioners
Vs
https://www.mhc.tn.gov.in/judis
Page No.1/23
Writ Appeal No.692 of 2018
1. Government of Tamil Nadu,
Rep. By its Secretary,
Animal Husbandry, Dairying and
Fisheries Department,
Fort St. George, Chennai – 600 009.
2. The Commissioner and Director of
Animal Husbandry and Veterinary Services,
Central Office Buildings, Block – II,
DMS Compound, Chennai – 600 006.
3. K.Rajendra
4. S.Ganesan
5. P.Ravi
6. M.Palanisamy ... Respondents
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent to set
aside the order dated 16.06.2010 passed in W.P.No.47588 of 2006
insofar the learned Judge has not dealt with the direction for grant of 40%
pay for arriving total emoluments.
For Appellants : Mr.V.Govardhanan
for M/s.Row and Reddy
For Respondents : Mr.R.Kumaravel
Additional Govt. Pleader [ R1 to R2]
R3 to R6 – Given up
https://www.mhc.tn.gov.in/judis
Page No.2/23
Writ Appeal No.692 of 2018
JUDGMENT
(Judgement of the Court was delivered by R.SURESH KUMAR.,J.) This Writ Appeal has been directed against the order dated 16.06.2010 made by the Writ Court in W.P.No.47588 of 2006.
2. All these appellants were the erstwhile employees of the Tamil Nadu Poultry Development Corporation Limited [in short, the Corporation].
3. At one point of time, the Government thought it to close down the Corporation and accordingly, they issued a Government Order in G.O.Ms.No.91, Animal Husbandry and Fisheries (TAPCO) Department, dated 06.06.2000, inter-alia in the said Government Order, they have stated that there were 139 employees working in the Corporation and now by virtue of the decision taken by the Government to close down the Corporation, all the 139 employees have to be transferred to the Department viz., Department of Animal Husbandry and to absorb as permanent / regular employees of the Department concerned. https://www.mhc.tn.gov.in/judis Page No.3/23 Writ Appeal No.692 of 2018
4. Enabling the Government to absorb them, in the said G.O.Ms.No.91, the Government has stated the following:
“3.As per the judgment of the High Court, the Managing Director, Tamil Nadu Poultry Development Corporation Limited was requested to prepare a seniority list of all employees of the Tamil Nadu Poultry Development Corporation Limited based on their dates of joining in the present category and also to formulate a scheme to absorb required number of employees in the Department of Animal Husbandry for supervision of Noon Meal Programme Egg. Supply work.
In his letter third read above, the Managing Director, Tamil Nadu Poultry Development Corporation Limited has sent necessary proposals. The Government after careful consideration of the proposals of the Managing Director, Tamil Nadu Poultry Development Corporation Limited direct that para. 4(1) of the Government order first read above shall be sustained as follows:
“The Noon Meal Egg. Supply supervision and monitoring work higher to performed by the Tamil Nadu Poultry Development Corporation Limited be transferred and attended to by the Department of Animal Husbandry under the control of the Director of Veterinary Services. The seniority list of Tamil Nadu Poultry Development https://www.mhc.tn.gov.in/judis Page No.4/23 Writ Appeal No.692 of 2018 Corporation Limited Employees now prepared as observed by the High Court and approved by the Board of Directors of the Tamil Nadu Poultry Development Corporation Limited be followed for absorbing the required number of employees in the respective categories as Government servants for the above work. The Government sanction the creation of 139 posts as detailed in the annexure to this order in the Department of Animal Husbandry for attending to the above work. The Director of Veterinary Services shall send proposals for filling up of the posts of Additional Director and Joint Direct by redeployment. The Managing Director, Tamil Nadu Poultry Development Corporation shall immediately transfer 139 persons in various categories in the Tamil Nadu Poultry Development Corporation Limited as indicated in the Annexure to this order as per seniority list for appointment as Government servants. Orders regarding the regular appointment of the above 139 posts will be issued separately by the Government in consultation with the Tamil Nadu Public Service Commission. The Director of Veterinary Services is requested to send necessary proposals to Government in this regard.”
5. Therefore, by virtue of G.O.Ms.No.91, all the 139 staffs stood transferred from Corporation to the Department and they have been https://www.mhc.tn.gov.in/judis Page No.5/23 Writ Appeal No.692 of 2018 absorbed.
6. While absorbing them as a regular employees in the Department, irrespective of the designation, where they were originally working in the Corporation, they have been fit in the equal rank in the Department. For instance, the Managing Director of the Corporation now has been re- designated as Assistant Director of Animal Husbandry and several other such posts will have the same nomenclature. For instance, Superintendent, Assistant, Junior Assistant, Typist, Driver, Farm Assistant, Office Assistant, these designations will be the same even after their absorption in the Department.
7. Accordingly, in respect of each of such designation pay scale has also been fixed for these transferred employees from Corporation to Department, which has been shown as Annexure - I to G.O.Ms.No.91 and for easy reference, the said annexure - I is extracted hereunder:
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8. Accordingly, these employees including the appellants since had been transferred and absorbed in the Department, they have been continuously working in the new designation as stated supra. https://www.mhc.tn.gov.in/judis Page No.7/23 Writ Appeal No.692 of 2018
9. While that being so, on 25.10.2006, the respondent Department had issued a communication in letter No.26159/Poul/2005-6, wherein the Government has stated the following:
“I am directed to refer to your letter cited and to say that your request for confirming the presumption of taking into account of 40% of pay for arriving the total emoluments in respect of staff transferred from the erstwhile Tamil Nadu Poultry Development Corporation to the Director of Animal Husbandry was examined in details.
The ex-employees of erstwhile Tamil Nadu Poultry Development Corporation were appointed newly in the Government service by giving relaxation to various conditions in respect of age, qualification etc. As such their pay has to be refixed only at appropriate stage of the revised scale of pay, to which they are eligible. Since the ex-staff of the erstwhile Tamil Nadu Poultry Development Corporation were appointed in the Director of Veterinary Services are considered on new entry basis in Government services, the refixation of pay as per G.O.No.162, Finance (PC) Department, dated 13.4.98 with effect from 12.06.2000 with 40% of pay for arriving total emoluments does not arise.” https://www.mhc.tn.gov.in/judis Page No.8/23 Writ Appeal No.692 of 2018
10. The sum and substance of the said communication was that though these employees were transferred from Corporation to Department as per G.O.Ms.No.91 as stated supra and they have been re-designated and based on which, the re-designating pay has also been fixed, which had already been provided in the Department for others and based on which, the payment had also been made. However, after six years of their transfer and absorption in the Department, the said communication was issued on 25.10.2006 stating that these employees would be considered as a new entrants in the Department, resultantly, they are not entitled to get the salary equal to that of the earlier incumbent, who all are working in that Department. Hence, they are also not entitled to re-fixation of pay as per G.O.Ms.No.162, Finance (PC) Department, dated 13.4.98 with effect from 12.06.2000, the date on which, they got transferred and absorbed in the Department. As a sequel, there has been a recovery proceedings issued by the Commissioner of Animal Husbandry Department on 02.11.2006 to recover the alleged excess amount paid to these employees based on the regular time scale of pay on par with or on equal with the employees with various designations of the Department. https://www.mhc.tn.gov.in/judis Page No.9/23 Writ Appeal No.692 of 2018
11. Aggrieved over the said communication dated 25.10.2006 issued by the Government of Tamil Nadu through the Animal Husbandry Department as well as the consequential recovery proceedings issued by the Commissioner of Animal Husbandry Department against these employees dated 02.11.2006, they joined together and filed writ petition in W.P.No.47588 of 2006.
12. The said writ petition was heard and decided by a learned Judge of the Writ Court by order dated 16.06.2010.
13. In the said writ petition, the learned Judge having taken note of the earlier Division Bench Judgment has allowed the writ petition to the extent that insofar as the recovery that was sought to be made by virtue of the consequential impugned order dated 02.11.2006 before the Writ Court, such recovery cannot be made, therefore, to that extent the relief was given to the employees and the writ petition was allowed.
14. Not satisfied with the said order passed by the Writ Court dated 16.06.2010, the writ petitioners i.e., 24 out of 28 writ petitioners have come before this Court by filing this intra-court appeal. https://www.mhc.tn.gov.in/judis Page No.10/23 Writ Appeal No.692 of 2018
15. On behalf of the appellants, Mr.V.Govardhanan, learned counsel would submit that, insofar as the part of the prayer sought for by the appellants before the Writ Court though was allowed to the extent that the recovery cannot be made from the employees, the Writ Court has not considered the main plea of these employees to re-fix their pay scale on par with other permanent employees, who have already been working in the same Department, for which, they are entitled to, especially the 40% hike based on the V pay commission recommendation with effect from 01.01.1996. Therefore, such a omission or refusal on the part of the Writ Court is merely based on the earlier order passed by the Division Bench, which was followed by the learned judge. However, earlier order passed in the writ appeal i.e., in W.A.(MD).No.632 of 2007 is concerned, which was related to a retired employee, therefore, his fixation of pay scale was not mainly agitated before the Division Bench. Hence, in this case also in the impugned order, the learned Judge has confined only to the recovery part and not on the plea with regard to the fixation of correct pay scale and therefore, that aspect since the learned Judge has omitted to take into consideration the grievance of the petitioners/appellants, they were constrained to move the present writ appeal, he contended.
https://www.mhc.tn.gov.in/judis Page No.11/23 Writ Appeal No.692 of 2018
16. Elaborating further his submissions, the learned counsel would contend that, by virtue of G.O.Ms.91, dated 06.06.2000 all the 139 erstwhile employees including these appellants were transferred and absorbed in the Department in various capacities, for which 139 posts were created in the Department and at the time of issuance of G.O.Ms.No.91, what are all the new designation for these people have also been made in the Annexure – I and the respective salary also have been fixed. When that being so, so far as the recovery is concerned, it is totally unjustifiable and in this context, the recovery was stalled by the Writ Court, as against which, no appeal has been filed by the Government.
17. When they are not entitled to recover the amount from the employees, that means, what has been paid to them is not an excess amount, therefore, they are entitled to original pay that has been fixed under G.O.Ms.No.91, which should be revised from time to time based on the pay commission recommendation. In this context, on 01.01.1996 V pay commission recommendation was in force, in the year 2000 these employees were transferred, therefore, they are very much entitled to seek for such a pay on par with other employees based on the V pay https://www.mhc.tn.gov.in/judis Page No.12/23 Writ Appeal No.692 of 2018 commission recommendation and therefore, the re-fixation also since one of the grievances that should have been redressed, which, the learned Judge has failed to redress or refused to redress, therefore, the learned counsel seeks indulgence of this Court only to that aspect.
18. Per contra, Mr.R.Kumaravel, learned Additional Government Pleader appearing for the first and second respondents would submit that, insofar as these employees are concerned, admittedly they were the erstwhile employees of the corporation and the corporation was running under loss or for any other administrative reasons, the Government thought it fit to close down the corporation, therefore, a policy decision was taken, while taking such a decision, the employees, who all are working in the corporation have to be rehabilitated, therefore, the Government thought it fit to issue a Government order in G.O.Ms.No.91, under which, all these 139 employees were directed to be transferred to the Department and accordingly, they were transferred and re-designated. However, while transferring and re-designating the employees they are already over aged, to get into the Government service to the respective categories, therefore, the relevant Rule in this regard i.e., Ministerial Service Rule, etc., had necessarily to be relaxed, therefore after giving https://www.mhc.tn.gov.in/judis Page No.13/23 Writ Appeal No.692 of 2018 such relaxation only, the Government accepted these 139 employees in the main fold i.e., Department. Therefore, for all practical purposes, their entry in the Department only to be treated as new entrants, hence, these employees would be called as a new entrants.
19. Hence, the learned Additional Government Pleader would submit that, if the employees are new entrants, they are entitled to get the salary as a new entrants, therefore, what has been fixed already to a permanent employee, who had been working in the Department for several years cannot be equated with new entrants. Accordingly, the plea raised by them to have a fixation of 40% hike based on the V pay commission recommendation would not be made applicable to these employees, since that has been realised only later on by the Department as well as the Government, that is the reason why, the orders impugned before the Writ Court were issued and a consequential recovery were also directed to be made. He would also submit that, insofar as the recovery is concerned, already atleast in one case, the recovery was not permitted and the Division Bench order has become final. Following the same, when the learned Judge passed the order impugned, the Department has not preferred any appeal against the order. However, insofar as the further https://www.mhc.tn.gov.in/judis Page No.14/23 Writ Appeal No.692 of 2018 plea of the employees to fix the pay by way of re-fixation on par with regular employees are concerned, the said plea cannot be considered, for the reason that, the employees are only to be treated as a new entrants, therefore, they are not entitled to get any pay hike on par with such regular employees, who have put in service for several years in the Department concerned, he contended.
20. We have considered the submissions made by the learned counsel appearing on both sides and have perused the materials placed before this Court.
21. It is an admitted fact that there were 139 employees including these appellants who are the employees of the erstwhile Corporation and a decision was taken to close down the Corporation and the Government had come forward to rehabilitate these employees, therefore, G.O.Ms.No.91 dated 06.06.2000 was issued, the relevant portion of the G.O has already been extracted herein above, where in order to accommodate these 139 employees, equal number of posts on various categories have been created through the G.O. in the Department, therefore, these posts have been sanctioned, where these employees have https://www.mhc.tn.gov.in/judis Page No.15/23 Writ Appeal No.692 of 2018 been absorbed depending upon the category, where they had been working in the Department. For instance, Managing Director to the Corporation has now been re-designated as Additional Director of Animal Husbandry Department. Like that, a Field Officer of Corporation has now been re-designated as Senior Veterinary and Live stock Supervisor and most of the other designations, which have been mentioned herein, for which, very same nomenclature in the Department also were available, which has been made in the Annexure – I of G.O.Ms.No.91, and has also been extracted herein above. The pay scale has also been fixed in various categories starting from Assistant Director of Animal Husbandry till the Office Assistant.
22. Based on these fixation, the salary has also been given to these employees and that was at one point of time i.e., on 02.11.2006 sought to be recovered and that was negatived by the learned Judge in the order impugned by the Writ Court, which in fact was following the earlier Division Bench judgment in W.A.(MD).No.632 of 2007. https://www.mhc.tn.gov.in/judis Page No.16/23 Writ Appeal No.692 of 2018
23. In the said Judgment i.e., W.A.(MD).No.632 of 2007 is concerned, the employee in that case was a retired employee, therefore they are concerned with only the pensionary benefits, therefore, the Division Bench while reversing the order passed by the Writ Court in that case has confined only with regard to the recovery aspect and has not gone into the fixation of the salary, probably that might not have been the pressing issue before the Division Bench, because the employee in that case was only a retired employee. Merely because that issue was not considered by the Division Bench, it cannot be stated that the issue has already been considered and given a quietus.
24. When such a issue that has been specifically raised before the Writ Court that ought to have been considered, but the learned Judge has confined only with the order already passed in the Writ appeal as referred to above and granted the relief with regard to the recovery alone.
25. Therefore, aggrieved over the said order this appeal has been filed by these employees i.e., writ petitioners/appellants. https://www.mhc.tn.gov.in/judis Page No.17/23 Writ Appeal No.692 of 2018
26.The reasons stated by the respondent side as projected by the learned Additional Government Pleader for refusing to fix a pay for these employees on par with regular employees are concerned that they have been absorbed in the year 2006 by virtue of G.O.Ms.No.91 only as a new entrants, therefore, they can only be treated as a new entrants in the Department, for that reason they are entitled to get the salary as a new entrants not on par with the employees, who have already been in the Department. That argument is outrightly rejected by this Court, because, the erstwhile employees of the Corporation stood transferred to the Department by virtue of G.O.Ms.No.91. If we see the import of G.O.Ms.No.91, it makes very clear that the 139 employees had been transferred to the Department, transferred means, the employees had already been working in a Corporation, which is also funded or governed or administered by the Government. When the Government decided to close down the Corporation, the employees naturally have to be given a rehabilitation, for which, the Government has come forward to issue G.O.Ms.No.91 to take them back to the Government fold i.e., in the Animal Husbandry Department.
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27. It is the reason why, the Government in the G.O.Ms.No.91 itself provided annexure - I and it was made very clear that, what are all the re-designation posts in which these employees are going to be placed and in respect of which re-designation pay also had already been fixed on par with the other employees of that category. The G.O.M.S.No.91 is still holds good and the G.O.Ms.No.91 alone paved the way to these 139 employees to get a transfer and absorption in the Department.
28. When that being so, the Government might have at a later date, passed individual orders or a group of orders for some group of people among the 139 employees however that would not ipso facto give rise to make a point by the Government stating that these employees are not regular employees. That the ground raised by the respondent to refuse to fix the correct pay scale on par with others is thoroughly unjustifiable and not supported by any service jurisprudence.
29. Once the service of the erstwhile employees had been taken into account, based on which while making transfer to the Department of- course the employees even though are placed at the junior most in the respective category, the seniority alone these employees would lose in the https://www.mhc.tn.gov.in/judis Page No.19/23 Writ Appeal No.692 of 2018 particular category as they will be put in the last in that category that does not mean that they will be placed in a different scale of pay in the same category.
30. It is settled proposition that, in a Government service the designation of one category will not have two different pay structure. For instance, in the Additional Director of Animal Husbandry post, suppose 4 persons are working in the Department all the four will have the equal pay except the increment depending upon their seniority. So far as the basic pay is concerned, it must be one and the same, like that in all other designations up to the Office Assistant they will have the same pay scale. When that being so, the re-fixation ought to have been made on the basis of the pay commission recommendation, which is being made from time to time.
31. Here in the case in hand, the V pay commission recommendation made in the year 1996 since had already been implemented in respect of other employees of the Department, these employees also who entered in the service in the year 2000, by way of transfer and absorption certainly would be entitled to get such re-fixation, https://www.mhc.tn.gov.in/judis Page No.20/23 Writ Appeal No.692 of 2018 which should not have been refused by the Government. Therefore, the impugned order before the Writ Court is palpably wrong and therefore, we are in agreement with the learned Judge in setting aside the order. However, the learned Judge since considered only the recovery part and not to the fixation of pay, which aspect also should have been considered by the learned Judge. Therefore, we are inclined to accept the plea raised by the appellants herein, accordingly, this writ appeal is liable to be allowed.
32. Resultantly, there shall be a direction to the respondent Department to fix the pay scale for these appellants at the respective category from the date of entry in the Department pursuant to G.O.Ms.No.91 dated 06.06.2000 and accordingly, their pay shall be revised. It is needless to mention that after making the revision of pay, the arrears shall be calculated and be paid to these employees.
33. The needful as indicated above shall be complied with by the respondent within a period of 12 weeks from the date of receipt of a copy of this order.
https://www.mhc.tn.gov.in/judis Page No.21/23 Writ Appeal No.692 of 2018 With these directions, this writ appeal stands allowed. No costs.
(R.S.K.,J.) (K.B., J.)
10.07.2023
Index: Yes
Speaking Order
Neutral Citation:Yes
mp
To
1. The Secretary,
Animal Husbandry, Dairying and
Fisheries Department,
Fort St. George, Chennai – 600 009.
2. The Commissioner and Director of
Animal Husbandry and Veterinary Services,
Central Office Buildings, Block – II,
DMS Compound, Chennai – 600 006.
https://www.mhc.tn.gov.in/judis
Page No.22/23
Writ Appeal No.692 of 2018
R.SURESH KUMAR., J.
and
K.KUMARESH BABU.,J.
mp
Writ Appeal No.692 of 2018
10.07.2023
https://www.mhc.tn.gov.in/judis
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