Madras High Court
S.Karunanithi vs Government Of Tamil Nadu on 23 April, 2013
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.04.2013
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.41316 of 2005
S.Karunanithi .. Petitioner
-vs-
1. Government of Tamil Nadu
represented by Secretary to Government
Environment and Forests Department
Fort St.George
Chennai 600 009
2. Arasu Rubber Corporation Limited
rep.by its Managing Director
Vadasery
Nagercoil 629 001
Kanyakumari District .. Respondents
Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for records of the first respondent relating to Letter No.7218/FR-8/10-8 dated 30.03.2011 and Government Lr.No.472/FR-8/2003-11, Environment and Forest Department dated 13.2.2004, quash the same and issue consequential orders to the respondents to grant the scale of pay of Rs.2200-75-2800-100-4000 to the petitioner from the date of his initial appointment as Computer Programmer in Arasu Rubber Corporation i.e., from 5.9.1991 with consequential monetary benefits and to consider the name of the petitioner for upgradation as E.D.P. Manager in the Corporation.
For Petitioner :: Mr.M.Ravi
For Respondents :: Mr.M.Hidayathullah Khan
Government Advocate (Forests)
ORDER
This writ petition was filed by Mr.S.Karunanithi initially seeking a prayer for issuance of a writ of certiorarified mandamus, to call for the records of the first Respondent relating to Government Lr.No.472/ FR.8/2003-11, Environment and Forests Department dated 13.02.2004, to quash the same with consequential orders to the Respondents to grant the scale of pay of Rs.2200-75-2800-100-4000 to the petitioner from the date of his initial appointment as Computer Programmer in Arasu Rubber Corporation i.e. from 5.9.1991 with consequential benefits and to consider the name of the petitioner for upgradation as E.D.P. Manager in the Corporation in the next higher scale of pay.
2. The petitioner in the writ petition has sought for higher salary in the post of Computer Programmer on par with the salary received by the Computer Programmers working in the TAFCORN, Forest Department etc. During the pendency of the matter, it was brought to the notice of this Court that a proposal relating to the revision of pay scale of the petitioner was placed before the Board of Directors in the 109th meeting held on 23.3.2010. Therefore, on hearing the learned counsel on either side, this Court, by order dated 31.01.2011, directed the Board of Arasu Rubber Corporation Limited to place the proposal before the Government for considering the case of the petitioner and for passing appropriate orders. Subsequently, the Government rejected the proposal made by the second respondent. Therefore, the petitioner has made an application in W.P.M.P.No.138 of 2013 seeking to amend the prayer in order to challenge the latest order passed by the first respondent. In view of the subsequent development, this Court has accepted the prayer of the petitioner and allowed the petition for amendment of the prayer by order dated 23.4.2013 seeking issuance of a writ of certiorarified mandamus, to call for the records of the first respondent relating to Letter No.7218/FR-8/10-8 dated 30.03.2011 and Government Lr.No.472/FR-8/2003-11, Environment and Forest Department dated 13.2.2004, quash the same and issue consequential orders to the respondents to grant the scale of pay of Rs.2200-75-2800-100-4000 to the petitioner from the date of his initial appointment as Computer Programmer in Arasu Rubber Corporation i.e., from 5.9.1991 with consequential monetary benefits and to consider the name of the petitioner for upgradation as E.D.P. Manager in the Corporation.
3. Assailing the impugned order, the learned counsel for the petitioner submitted that when the petitioner joined the services of the second respondent-Arasu Rubber Corporation Limited as Computer Programmer by virtue of the order passed by the Managing Director of the Corporation dated 4.9.91, the scale of pay was Rs.1400-40-1600-50-2300 as on the date of his joining the service on 5.9.91. After noticing the anomaly and disparity in the scale of pay of the Computer Programmer working in the second respondent-Arasu Rubber Corporation Limited on the one hand with that of the scale of pay of the Computer Programmers working in the other Government departments on the other hand, since the scale of pay given to the Computer Programmers in the other Government departments was Rs.2000-60-2500-75-3200 and that was the scale of pay given in the Tamil Nadu Forest Plantation Corporation Limited, Tiruchirappalli, the sister concern of Arasu Rubber Corporation Limited, when the petitioner's representation was under consideration, the Managing Director of the Corporation, by his letter dated 22.2.93, informed the petitioner that after completion of some of the works relating to accounts, his request for revision would be considered. Adding further, it was pleaded before this Court that when the qualification for the post of Computer Programmer working in various other Government departments and Corporations including TAFCORN is one and the same, namely, B.Sc., in Computer Science or equivalent diploma thereto from a recognised University, the petitioner, having possessed the same qualification at the time of his appointment as Computer Programmer, cannot be paid with a lesser salary when the very same Computer Programmer working in TAFCORN possessing the same qualification like that of the petitioner is paid with a higher salary. It was also further pleaded that even in the case of various other departments and in the Employees Provident Fund Organisation, when the same qualification, namely, B.Sc., in Computer Science or equivalent diploma thereto from a recognised University is considered as the only qualification for the post of Computer Programmer and the employees in the said cadre are drawing higher salary than the petitioner, it is absolutely untenable and unsustainable on the part of the first respondent to reject the case of the petitioner, particularly when the petitioner's case was properly analysed and recommended by the competent committee for enhancement of his salary on par with the Computer Programmers working in the various departments viz., TAFCORN and EPFO etc. The learned counsel also submitted that the stand of the first respondent in rejecting the reasonable request of the petitioner is not fair and just and he also brought to the notice of this Court the proposal made by the second respondent in this regard. The proposal clearly shows that the workload of Computer Programmer in TAFCORN is not more than the workload of the petitioner appointed in the second respondent-Corporation, as the total number of employees working in the second respondent-Corporation is almost 1915, which is greater than the employees working in TAFCORN viz., 455. When the petitioner, he pleaded, has been handling the entire computerisation work single handedly in the second respondent-Corporation, whereas in TAFCORN in addition to Computer Programmer there is one Computer Operator also, as a result of reduction of many posts there is dearth of officers, on that basis, the proposal sought for enhancement of salary of the petitioner on par with the Computer Programmers working in TAFCORN and other departments. One another recommendation made in the proposal shows that the case of the petitioner for further promotion to the post of EDP Manager cannot be considered, since there is no post available in the second respondent-Corporation.
4. Adding further, it was pleaded that when Rule 34 of the Service Rules of the second respondent-Corporation clearly shows that the pay and allowances viz., Dearness Allowance, House Rent Allowance, Rural Incentive Allowance, Project Allowance etc., would be paid to the corporation employees at the rates applicable to State Government employees from time to time, the rejection of the proposal made by the second respondent to increase the scale of pay of the petitioner in the post of Computer Programmer on par with the Computer Programmers working in the TAFCORN and other departments is not only unjust and unfair, but also runs contrary to Rule 34 of the Service Rules of the second respondent-Corporation. It was further submitted that when the petitioner, on an earlier occasion, came to this Court by filing W.P.No.3093 of 1998 against the very same respondents, this Court, by order dated 16.10.2003, had given a categorical finding that the petitioner has established that the basic qualification required is the same qualification prescribed in TAFCORN. Therefore, the rejection made by the first respondent declining to grant the scale of pay on par with the other Computer Programmers working in TAFCORN and other departments is completely based on a wrong assumption, particularly when the qualification possessed by the petitioner is equal to the qualification possessed by the Computer Programmers working in TAFCORN and other departments. In spite of the above reasons, the rejection of the proposal by the first respondent is liable to be set aside, otherwise, Rule 34 of the Service Rules of the second respondent-Corporation would get frustrated. On these submissions, the learned counsel for the petitioner sought for granting the prayer.
5. A detailed counter affidavit has been filed by the respondents. The learned Government Advocate for the respondents submitted that even though the qualification for the post of Computer Programmer in TAFCORN and other departments is one and the same viz., B.Sc., in Computer Science or equivalent diploma thereto from a recognised University, subsequently, the qualification for the post of Computer Programmer has been tremendously increased to M.Sc., in Computer Science with three years experience. On the basis of higher qualification, the post of Computer Programmer is regulated in the TAFCORN and various departments, EPFO, etc. Therefore, if this Court considers the case of the petitioner, as it was already rejected by the first respondent holding that the proposal sent by the second respondent recommending the payment of higher salary on par with the Computer Programmers employed in TAFCORN and other departments is not feasible of compliance, it would cause great prejudice to the Computer Programmers who were appointed by virtue of the amendment of the qualification of M.Sc., in Computer Science with three years experience. It was also further pleaded that the petitioner is the only person working in the second respondent-Corporation. Therefore, as he has been working from the year 1991, Rule 34 of the Service Rules of the Corporation cannot be wrongly interpreted in favour of the petitioner, for the reason that Rule 34 envisages only the payment of dearness allowance, house rent allowance, rural incentive allowance, project allowance etc., but not the scale of pay of the petitioner on par with the other employees working in the State Government offices. Finally, it was also pleaded that although the petitioner was appointed as Computer Programmer in the second respondent-Corporation by proceedings dated 4.9.91 issued by the Managing Director of the Corporation with the pay scale of Rs.1400-2300, the rejection of the proposal made by the second respondent-Corporation requesting the first respondent to increase the salary in comparison with the other Computer Programmers working in TAFCORN and various other departments cannot be found fault with, for the reason that the proposal has been proceeded on the wrong basis that there is no post of EDP Manager available in the second respondent-Corporation. He also further contended that if for any reason the request of the petitioner is accepted for enhancement of salary on par with the Computer Programmers working in TAFCORN and other departments, the petitioner cannot be promoted to the post of EDP Manager for the reason that the said post is not available in the second respondent-Corporation. Also it will cause great hardship to the Corporation and give way for litigation by the employees working in TAFCORN and various other departments, seeking for similar unreasonable reliefs. Therefore, the proposal made by the second respondent was rightly rejected. When the petitioner cannot ask for promotion to the post of EDP Manager, as the said post has not been created by the Service Rules, he cannot equally ask for higher salary. On this basis, the learned Government Advocate sought for no interference with the impugned order.
6. Heard the learned counsel for the parties. From the date of his appointment as Computer Programmer in the second respondent-Corporation on 4.9.91, the petitioner has been receiving the scale of pay of Rs.1400-2300. Immediately after joining the service, the petitioner after noting his pay anomaly with that of the Computer Programmers working in TAFCORN and various other departments were getting higher salary, by citing Rule 34 of the Service Rules of the second respondent-Corporation, he made a representation to revise his scale of pay at Rs.2200-75-2800-100-4000 on par with the Computer Programmer working in TAFCORN, the sister concern of Arasu Rubber Corporation Limited. Though the petitioner's representation was not considered, when it was brought to the notice of the second respondent-Corporation as to Rule 34 of the Service Rules, which reads as pay and allowances, such as Dearness Allowance, House Rent Allowance, Rural Incentive Allowance, Project Allowance etc., will be paid to the corporation employees at the rates applicable to State Government employees from time to time, the second respondent-Corporation, in the 109th Board meeting held on 28.6.2010, while considering the proposal, made the following resolution:-
"The representation of the petitioner has merit. The workload in TAFCORN is not more than in Arasu Rubber Corporation. In fact the total number of employees in Arasu Rubber Corporation (1915) is greater than in TAFCORN (455). The petitioner has been handling the entire computerisation work single handedly whereas in TAFCORN in addition to Computer Programmer, there is one Computer Operator also. Further, in Arasu Rubber Corporation as a result of reduction of many posts, there is dearth of officers. So many works (other than computer related works) have been entrusted to him and he is successfully performing those works also. The appointment of the Computer Programmer both in TAFCORN and Arasu Rubber Corporation were done on the basis of same educational qualification. So, the request of the Computer Programmer to grant him the scale of pay on par with the scale of pay of Computer Programmer in TAFCORN i.e., Rs.2200-75-2800-100-4000 from the date of his appointment may be agreed to. However, his request for upgradation as EDP Manager in the next higher scale of pay need not be agreed to. Hence the following resolution is proposed for approval. The financial implication of the proposal if the following resolution is accepted works out to Rs.13.20 lakh approximately for the payment of arrears and the Corporation can meet the expenditure on its own.
Resolution Resolved to recommend to Government to revise the scale of pay of Thiru S.Karunanithi, Computer Programmer in Arasu Rubber Corporation Limited to Rs.2200-75-2800-100-4000 with effect from 5.9.91 (the date of his appointment as Computer Programmer in Arasu Rubber Corporation Limited) and to refix his pay correspondingly in the new scales as per the 6th Pay Commission (Central Government) and 6th Pay Commission (Central Government) G.O's with effect from the applicable dates i.e., in Rs.8000-275-13500 with effect from 1.1.96 (5th Pay Commission) and in Rs.15600-39100+Grade Pay 5700 with effect from 1.1.2006 (6th Pay Commission).
Also resolved not to recommend to Government for his upgradation as EDP Manager, since there is no post of EDP Manager in Arasu Rubber Corporation Limited."
7. A mere perusal of the above resolution clearly shows that the petitioner, while holding the post of Computer Programmer, has been doing tremendous work single handedly in the second respondent-Corporation than the other Computer Programmers working in TAFCORN and various other departments. In fact the total number of employees working in the second respondent-Corporation being 1915, the same is greater than the employees working in TAFCORN, which is only 455. The proposal also shows that the petitioner has been handling the entire computerisation work single handedly, whereas in TAFCORN, in addition to Computer Programmer, there is one more Computer Operator working. Further, in the second respondent-Corporation, as there is reduction of many posts, there is dearth of officers. In spite of the fact that the petitioner is the single Computer Programmer, it has been evaluated by the second respondent in their proposal that he is successfully performing all such works. Further, when the proposal also clearly mentions that the Computer Programmers appointed in the TAFCORN and in the second respondent-Corporation were having the same educational qualification, in my considered opinion, the first respondent, on receiving the proposal made by the second respondent, should have considered the same in favour of the petitioner, for the reason that the proposal also specifically states that the petitioner need not be considered for further promotion to the post of EDP Manager, as that post is not in existence in the second respondent-Corporation. When the proposal also says that the qualification possessed by the Computer Programmers working in the second respondent-Corporation, TAFCORN and various other departments is one and the same viz., B.Sc., in Computer Science, which has been possessed by the petitioner and when the said proposal also states that the petitioner need not be considered for the post of EDP Manager, in the light of Rule 34 of the Service Rules of the second respondent-Corporation, as highlighted above, the first respondent should have accepted the proposal and should have left to the second respondent to bear the financial burden. In this context it is pertinent to extract Rule 34 of the Arasu Rubber Corporation Limited (Service Rules) as follows:
"34.Pay and allowances Pay and allowances, such as Dearness Allowance, House Rent Allowance, Rural Incentive Allowance, Project Allowance etc. will be paid to the Corporation employees at the rates applicable to State Government employees from time to time."
A mere reading of the above Rule clearly shows that the pay and allowances will be paid to the Corporation employees at the rates applicable to the state Government employees from time to time. Therefore, when the request of the petitioner is in fine tune with Rule 34, impugned order cannot refuse to accept Rule 34. Therefore, this Court, having seen that the educational qualification possessed by the petitioner is equal to the educational qualification possessed by the other Computer Programmers in TAFCORN and various other departments, EPFO etc., in the light of Rule 34 of the Service Rules, this Court finds no impediment to give a direction to the first respondent to sanction the proposal already made by the second respondent for enhancement of the salary of the Computer Programmer working in the second respondent-Arasu Rubber Corporation Limited.
8. For all the aforesaid reasons, the impugned order is set aside and the writ petition is ordered by directing the first respondent to sanction the proposal already made by the second respondent for revising the pay scale of the petitioner in the post of Computer Programmer working in the second respondent-Arasu Rubber Corporation Limited at Rs.2200-75-2800-100-4000 from the date of his initial appointment and pay the consequential benefits of revision to the petitioner out of the funds of the second respondent-Corporation within a period of eight weeks from the date of receipt of a copy of this order. There shall be no order as to costs.
ss To
1. The Secretary to Government Environment and Forests Department Fort St.George Chennai 600 009
2. The Managing Director Arasu Rubber Corporation Limited Vadasery Nagercoil 629 001 Kanyakumari District