BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/09/2007 CORAM: THE HONOURABLE MR.JUSTICE K. CHANDRU W.P.(MD) No.2252 of 2007, W.P.(MD) No.10011 of 2006 and M.P.Nos. 2 and 3 of 2007 and M.P.Nos 1 of 2006 and 1 of 2007 W.P.No.2252 of 2007 1.A.Pandi 2.Ratnam 3.K.Raman 4.V.Kondalan 5.M.Kathavarayan 6.M.Marudhan 7.Karuppiah 8.A.Rajendran 9.C.Thangasamy 10.P.Swami 11.S.P.Ayyadurai 12.K.Kali 13.A.Muthuraman 14.A.Subramani ... Petitioners Vs 1.State of Tamilnadu rep. By the Secretary Animal Husbandary Dairying and Fisheries (Poultry) Department Fort St.George, Chennai - 600 009. 2. The Commissioner and Director of Animal Husbandary and Veterinary Services Central Officer Building, Block-II, DMS Compound, Chennai 600 006. ... Respondents W.P.No.10011 of 2006 B. Subramaniam ... Petitioners vs 1. State of Tamilnadu rep. By the Secretary Animal Husbandary Dairying and Fisheries (Poultry) Department Fort St.George, Chennai - 600 009. 2. The Commissioner and Director of Animal Husbandary and Veterinary Services Central Officer Building, Block-II, DMS Compound, Chennai 600 006. 3. The Joint Director of Animal Husbandary, Additional incharge, Dr.Thangaraj Salai, Veterinary Hospital Campus, Madurai 625 020. ... Respondents Prayer in W.P.No.2252 of 2007: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records of the letter No.13742/Poultry/2005-4 dated 28.11.2005 issued by the 1st respondent and followed in letter No.26159/Poul/2005-06 dated 25.10.2006 from the 1st respondent and quash the same and directing the respondents to grant the benefit of pay as per G.O.Ms.162 Finance(PC) Department dated 13.04.1998 with effect from 12.06.2000 with 40% of the basic pay for arriving a the total emoulments. Prayer in W.P.No.10011 of 2006: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records from the 3rd respondent in Na.Ka.No.3911/M/2005, dated 02.08.2006 and quash the same. !For Petitioners in ... Mr. R.S.Ramanathan both writ petitions ^For Respondents in ... Mr.S.C.Herold Singh both the writ petitions Government Advocate :ORDER
The petitioners are employees of the Tamilnadu Poultry Development
Corporation Limited (hereinafter referred as TAPCO) which is a wholly owned
State Government Company. The Government had taken a policy decision to abolish
the TAPCO by G.O.Ms.No.86, Animal Husbandry and Fisheries (TAPCO) Department,
dated 19.04.1999.
2.In that Government Order on account of abolition of TAPCO, certain
employees who were already entrusted with the work of supply of eggs to Noon
Meal Centres alone were sought to be absorbed in the Animal Husbandry and
Fisheries Department. For others they were given marching orders. As this had
resulted in discriminatory treatment because posting by the Corporation of an
employee in a particular place has due to fortuitous circumstances those
employees through their Association challenged that portion of the Government’s
Order found in paragraph 4(i) before this Court in W.P.No.7784 of 1999.
3.This Court agreed with the submission of the said Association and
allowed the writ petition by judgment dated 23.02.2000. This Court held that the
Department cannot make the post for the particular employees and therefore,
the other employees should also be given opportunities to get absorption in
other departments. The Government was directed to pass appropriate orders in
respect of the remaining 141 workmen.
4. The first respondent/State in order to abide by the judgment of this
Court, issued an order in G.O.Ms.No.91, Animal Husbandry and Fisheries (TAPCO)
Department dated 06.06.2000. In that order excepting for two persons 139 posts
were created under 16 categories to accommodate erstwhile employees of TAPCO.
In paragraph 5 of the said order the following conditions were imposed by the
Government:-
PARA 5: The transfer of 139 posts, under 16 categories and the appointment to
the posts will be under the following conditions:-
(i) Except the personnel on whom disciplinary action is pending and who
are on long leave, others will be appointed in the basis of seniority.
(ii) If the personnel who are being transferred to the Animal Husbandry
Department do not have the required qualification of age, education, sponsored
by the Employment Exchange or Special training, these qualifications will be
relaxed before their regular appointment. The Director of Veterinary Services
is requested to send necessary proposals in this regard.
(iii) These personnel will be considered as Government Servants only on
the dates of their joining in the Department of Animal Husbandry on transfer.
The transfer will be with immediate effect.
(iv) Their pay and allowances will be refixed with effect from the date
of joining in the Department.
(v) The seniority will be fixed below the seniority of the personnel of
the Department of Animal Husbandry Department working on that date, in that
category.
(vi) The leave earned by the personnel in the Tamilnadu Poultry
Development Corporation Limited shall be transferred to the Department of Animal
Husbandry.
(vii) The Employees provident fund Account will be transferred to the
General Provident Fund Account and a new account will be opened.
(viii) The Group Insurance Scheme will be closed and transferred to the
Government.
(ix) Their Service will be regularized from the date of their joining in
the Department of Animal Husbandry.
(x) The personal working in the Department of Animal Husbandry already
will be transferred back to the Tamilnadu Poultry Development Corporation
Limited with immediate effect.
(xii) The services rendered in the Department of Animal Husbandry from
09.07.1999 till the date of transfer to the Tamilnadu Poultry Development
Corporation Limited will be treated as services rendered continuously in the
Tamilnadu Poultry Development Corporation Limited.
5. Thereafter, these employees were absorbed in various posts under the
Animal Husbandry Department. After their entry into services an order was
issued by the first respondent dated 15.04.2005 with regard to the fixation of
salary. Paragraphs 2 and 3 of the said order is extracted below:
PARA 2: It is observed that the ex-employees of erstwhile TAPCO were appointed
newly in the Government service (Though on transfer) by giving relaxation to
various conditions in respect of age, qualification, training etc. As such
their pay has to be refixed only at the minimum of the revised scale of pay to
which they are eligible from the date of their joining the Government Service
i.e. On 12.06.2000.
PARA 3: Based on the orders issued in Para 5(iv) of the G.O.Ms.No.91, Animal
Husbandry and Fisheries Department dated 06.06.2000 and also considering the
representation preferred and working at the Directorate of Veterinary Services,
it has been decided, that the pay of these staff shall be refixed with effect
from the date of their joining in Government Service in the Directorate of
Veterinary Services (i.e.12.6.2000) with arrears. If the employees appointed in
the Directorate of Veterinary Services are considered on new entry basis in the
Government Service then their pay may be refixed at the appropriate stage in the
revised time scale of pay 148% of the dearness allowance, personal pay, if any,
first and second instalments of interim relief sanctioned. If any, there by
arising at the total emoluments. The pay may be refixed at the same stage if
there is a stage in the revised scale and at the next stage if there is no such
stage.
6. After implementing V Pay Commission’s pay fixation as there were
anomalies with reference to revision of pay scale, an official committee was
appointed to give finality to the said issue and the recommendations of the said
committee was implemented by the issuance of Government Order in G.O.Ms.No.162
Finance (Pay Cell) Department dated 13.04.1998. The said order also contains
various tables as to how the pay should be fixed by taking into account the 40%
of the basic pay for the purpose of fixing appropriate fitment. The employees
including the erstwhile TAPCO employees, including the petitioner herein wanted
to have the said formula to be extended to them and in view of the same further
clarification was issued by the first respondent/State by a letter dated
28.11.2005.
7. In the said letter in respect of the erstwhile TAPCO employees the
following orders of the Government Order was issued:
PARA 2: In this connection I am directed to invite attention to the instruction
issued in para 3 of the Government letter first cited, wherein the pay of the
erstwhile employees of Tamilnadu Poultry Development Corporation Limited may be
refixed at the appropriate stage in the revised time scale of pay by taking into
account the basic pay if any, first and second instalment of interim relief
sanctioned, if any thereby arriving at the total emoluments. The pay may be
refixed at the same stage if there is a stage is the revised scale and at the
next stage if there is no such stage. Hence, I am directed to clarify that the
question of allowing 40% of the pay as mentioned in G.O.Ms.No.162, Finance(PC)
Department, dated 13.4.1998 arriving at the total emoluments does not arise.
8. It was made clear by the said order that the question of allowing 40%
of the pay mentioned in G.O.Ms.No.162 Finance(Pay Cell) Department dated
13.04.1998 was not exclusively extended to the erstwhile TAPCO employees whose
services were transferred and treated as fresh entrants. Even thereafter, a
clarification was sought for by the Commissioner and Director of Animal
Husbandry and Veterinary Services and another clarification dated 25.10.2006
with reference to the same was issued and the relevant para of the said order
is stated as follows:
PARA 2: The ex-employees of erstwhile Tamilnadu 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 Tamilnadu 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.Ms.No.162, Finance(PC) Department, dated 13.04.1998 with effect from
12.06.2000 with 40% of pay for arriving total emoluments does not arise.
9. It is this clarification which now under challenge by the 14
petitioners who are holding different posts when they were belonged to the same
class namely erstwhile TAPCO employees and whose services were absorbed by the
Government to the Animal Husbandry Department. In the meanwhile the Department
fixed the scale of pay to these petitioners and granted 40% of pay as a fitment
formula as make available in G.O.Ms.No.162 dated 13.04.1998.
10. When objections were raised the department sought to recover the said
amount from the employees. One workmen by name Mr.B.Balasubramaniam who was
working as a Junior Assistant in the third respondent department filed a writ
petition in W.P.No.10011 of 2006 against the recovery order and had also
obtained an interim stay of recovery which is still in force. In view of the
interconnecting of both the writ petitions the matters were taken up together
for final disposal.
11. Heard Mr.R.S.Ramanathan, the learned counsel appearing for the
petitioners in both the writ petitions and also Mr.H.C.Herold Singh, learned
Government Advocate appearing for the respondents and have perused the records.
12. Mr.R.S.Ramanathan, learned counsel appearing for the petitioners
submitted that in so far as their services were transferred to a Government
Department they are liable 40% of the fitment formula as provided under
G.O.Ms.No.162 dated 13.04.1998 and there is nothing in the said order to exclude
the case of the petitioners. Learned counsel further submitted that other
persons who went on Voluntary Retirement were allowed to go with full benefits
and their pay was fixed on the basis of the last drawn pay by taking into
account the 40% for fitment purpose. If that is allowed that will result in
discrimination against the petitioners. Now, it is contended by the learned
counsel for the petitioners that the pay granted by the committee on par with
other employees is violative of Articles 14 and 16 of the Constitution of India.
13. Per Contra, learned Government Advocate submitted that the very idea
of absorbing these petitioners to the Government Department was by a policy
decision of the Government by the measure of social justice and the petitioners
cannot improve their status as if their services was of a continuous in
Government. Learned counsel also submitted that the Government Order in
G.O.Ms.No.162, Finance Department, dated 13.04.1998 will apply only to persons
in the Government service who had continuous services whereas in the petitioners
case, the petitioners were squarely covered by G.O.Ms.No.91, Animal Husbandry
and Fisheries (TAPCO) Department, dated 06.06.2000.
14. In fact, it is only pursuant to the directions of this court the case
of the 139 employees including the case of the petitioners were considered
sympathetically by the Government and their services were transferred. The
petitioners are bound by the order of transfer and consequent absorption along
with the conditions imposed there under. In condition number iii as found in
paragraph 5 of G.O.Ms.No.91, Animal Husbandry and Fisheries (TAPCO) Department,
dated 06.06.2000, it was clearly stated that they will be considered as
Government Servant only from the dates of their joining in the Department and in
condition No.9 it was clearly stated that the regularisation will be made only
from the date of joining in the Department of Animal Husbandry.
15. When they are treated as fresh entrants to Government service they are
liable to fix their scale of pay on the basis of the scale available to the said
post and the question of extending the fitment formula does not arise. In fact,
this Court in the earlier judgment filed by the TAPCO Employees Association
dated 23.02.2000 clearly directed to consider the case of absorption of the
employees and did not grant any further relief to the petitioners. The
petitioners have accepted their term of transfers and it is too late for them to
contend as if they had come to the new department with all their services
continuity with consequential benefits. The petitioners served their connection
in the TAPCO services after getting due terminal benefits and therefore they
cannot equate themselves with the Government servants who were already in
service. Once, if that position is made clear then the question as to how the
pay of the erstwhile TAPCO employees has to be fixed can only be determined by
the order of the Government.
16. In fact, in the counter affidavit filed by the respondent/Government
dated 12.02.2007 in paragraph 5 (W.P.No.10011 of 2006) the State had explained
as to how the scale of pay of the petitioners in that writ petition has been
fixed and the same is extracted below:
That the scale of pay of Junior Assistant is Rs.3200-85-4900 only. Hence,
the pay of the petitioner has to be fixed only as follows:-
1. The pay of the petitioner drawn in TAPCO at the time of joining in the
Department(12.6.2000)
a.Basic Pay – Rs.1,500/-
b.Personal Pay - Rs. 63/-
c.148% as Dearness allowance - Rs.2,313/-
d. First Interim Relief - Rs. 100/-
e. Second Interim Relief - Rs. 150/-
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Total Rs.4,126/-
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2. The Scale of pay of Junior
Assistant as per VI pay
commission Rs.3200-85-4900
3. Hence, the petitioner’s pay has to be fixed at Rs.4,135/-.
17. But, in the case of the said petitioner pay is fixed at scale as
Rs.4600 by adding 40% of the pay last drawn and ignoring the fact that by
G.O.Ms.No.162 dated 13.04.1998 applied to employees who worked as on 01.01.1996,
whereas the petitioner had entered into Government service only on 12.06.2000.
It was also brought to the notice of this Court by the Government Advocate that
the petitioners were in receipt of the terminal benefits from the erstwhile
TAPCO for the services rendered by them.
18. Learned Government Advocate submitted that the case of the petitioner
does not deserve any legal attention by this Court. Subsequent to the issuance
of the Government Order in G.O.Ms.No.162, Finance(Pay Cell) Department, the
matter had received the attention of the Government atleast on three occasions
where the Government had clearly stated that the erstwhile TAPCO Employees
cannot be fitted on par with other employees and the benefit of G.O.Ms.No.162
does not arise in their cases. In fact, the order dated 28.11.2005 clarifying
the said position is not even under challenge. Whereas, the subsequent further
clarifications given by the Government dated 25.10.2000 alone is under
challenge. In as much as it is an admitted fact that the erstwhile TAPCO
employees whose services were transferred and placed at the disposal of the
Government were allowed to enter into the department only subsequent to the
official committee’s recommendation regarding adding 40% pay for fitment.
19. Therefore, the writ petition on this ground is liable to be dismissed.
The second contention that G.O.Ms.No.162, will apply along with tables appended
to the Government Order even to the petitioners is only stated to be rejected.
The tables found in the Government Order by giving stage by stage fitment will
apply only if the petitioners had the benefit of the said Government Order and
the question of applying the tables to them does not arise. In fact, in the
said Government Order itself it is stated that the new scale of pay is fixed
with reference to the emoluments as on 01.01.1996 and it is not for persons like
the petitioners. The officers of the Veterinary Department had fixed the scale
in respect of the petitioner (W.P.No.10011 of 2006) and such fixation is due to
misunderstanding and contrary to the Government direction issued in this regard.
Therefore, the said person cannot take advantage of such wrong fixation he is
legally liable to refund the amounts paid in excess.
20. Learned counsel for the petitioner contended that the petitioners case
may be considered with reference to the persons who had gone on Voluntary
Retirement. In the case of voluntary retired persons who are employed by the
TAPCO their terms were determined by G.O.Ms.No.103, Animal Husbandry and
Fisheries (Tapco) Department, wherein the said workman who went on voluntary
retirement scheme have been provided some extra amount for leaving the service
permanently.
21. Further, Courts have always held that leaving the services under
voluntary retirement scheme is to be determined on the basis of that scheme and
that cannot be compared with the voluntary retirement in terms of the service
rules. It was paid to such of workmen who were willing to leave service and
hence extra amount has to be paid. Therefore, the fixation of pay in their case
cannot be compared to the persons who are continuing in service. As rightly
contended by the learned Government Advocate the erstwhile TAPCO employees had
their terminal benefits received from the erstwhile Corporation and were
relieved from service. Therefore, the comparison with persons who had left on
Voluntary Retirement Scheme cannot be appropriate. Infact, the learned
Government Advocate also drew the attention of this Court with the previous
order granted in favour of the petitioner, wherein it is stated that their
payments are made in terms of Rule 10(a)(i) of the Tamilnadu State Subordinate
Services Rules and they will be considered as Government servants only from the
date of appointment.
22. Under such circumstances, there is no merits in the writ petitions and
accordingly, both the writ petitions are dismissed. The stay granted in
W.P.No.10011 of 2007 will stand vacated. Consequently connected miscellaneous
petitions are closed.
To
1. The Secretary,
State of Tamilnadu
Animal Husbandary Dairying and
Fisheries (Poultry) Department
Fort St.George,
Chennai – 600 009.
2. The Commissioner and Director
of Animal Husbandary and Veterinary
Services Central Officer Building,
Block-II, DMS Compound,
Chennai 600 006.
3. The Joint Director of Animal
Husbandary, Additional incharge,
Dr.Thangaraj Salai,
Veterinary Hospital Campus,
Madurai 625 020.