IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2010
CORAM:
THE HON'BLE MRS.JUSTICE R.BANUMATHI
AND
THE HON'BLE MR.JUSTICE M.VENUGOPAL
W.A.NOS.1483 TO 1485 OF 2009 AND M.P.NOS.1 OF 2009 (3 NOS.0 AND M.P.NOS.2 OF 2009 (2NOS.)
The Tamil Nadu Housing Board
rep.by its Managing Director
331, Anna Salai
Nandanam B.O., Chennai .... Appellant
in all W.As.
Vs.
1. B.Nimmi
2. C.Prema
3. P.Thiyagarajan
4. S.Sulochana
5. K.Sundaram
6. P.Narayanan
7. The Secretary to Government
Housing & Urban Development Department
Fort St.George
Chennai 600 009. .... Respondents
in W.A.No.1483 of 2009
1. P.Sekar
2. R.Marimuthu
3. D.Manohar Paulraj
4. R.Velmurugan
5. K.Sironmony
6. G.Sekar
7. M.Sardhar
8. R.S.Pandiarajan
9. V.Ukkirapandi
10. V.Krishnaraj
11. B.P.Subramanian
12. R.Muthusamy
13. A.Sadasivam
14. A.Abuthagir
15. M.Natarajan
16. N.Dhanabalan
17. K.Balakrishnan
18. R.Sethuraman
19. T.pandiammal
20. G.Rengasamy
21. Y.joseph Rajaseelan
22. P.Gunasekaran
23. G.Manivannan
24. J.Samuel Rajaiah
25. P.Ponnuraj
26. L.Arumuga Kani
27. K.Thenmozhi
28. K.Raman
29. A.Kandasamy
30. K.Tamilselvi
31. K.Jeyakumar
32. K.Rajendran
33. R.Ayyappasamy
34. S.Jameer Basha
35. R.Thamu
36. G.Chellappan
37. S.Iruthayamuthu
38. M.Murugesan
39. D.Vijayakumar
40. K.S.Chitra
41. S.Rose Mary
42. MMunisamy
43. B.Vimala Devi
44. The Secretary to Government
Housing & Urban Development
Department, Fort St.George
Chennai 600 009. ... Respondents
in W.A.No.1484 of 2009
1. K.Jayaprakash
2. M.Kesavan
3. K.Parthiban
4. T.Balamani
5. M.Thavamani
6. S.Nagarajan
7. A.Subramnaian
8. R.K.Perumal
9. The Secretary to Government
Housing and Urban Development
Department, Fort St.George
Chennai 600 009. ... Respondents
in W.A.No.1485
of 2009
Prayer: Writ Appeals in W.A.Nos.1483 to 1485 of 2009 are filed under Clause 15 of the Letters Patent against the order dated 2.2.2009 of this Court passed by the single Judge in W.P.Nos.15985 of 1998, 4403 and 21290 of 2005 respectively.
For Appellant : Mr.P.Wilson,Addl.Advocate General assisted by Mr.K.Chelladurai
For Respondents : Ms.Anna Mathew for
RR.1 to 6 in W.A.No.1483/2009,
RR.1 to 43 in W.A.No.1483/2009,
RR.1 to 8 in W.A.No.1483/2009,
JUDGMENT
R.BANUMATHI,J.
These Writ Appeals arise out of common order of single Judge quashing G.O.Ms.No.291 Housing and Urban Development dated 13.7.2000 and directing the Appellant to re-designate Respondents/writ petitioners as Work Assistants in the scale of pay of Rs.3050+75+270+80+4590 with effect from their original date of regularisation.
2. The facts in nutshell, which led to filing of the writ petitions and appeals, are as follows:
The nominal muster roll (N.M.R.) employees have been engaged on daily wages for various on going works in all the city and Moffusil Divisions/Units since 1978 by the Tamil Nadu Housing Board( in short, “TNHB”). Their services have been utilized in the construction works and maintenance works. Their wages have been paid on daily wages basis from the work estimate and the N.M.R. Labourers have been entrusted to various works depending upon the need like Gumastha, Maistry, Pump attender, Watchman, Sweeper. They have not been entrusted any specific work but entrusted different types of works irrespective of their qualifications. In G.O.Ms. No.1603 dated 7.12.1988 and 400 dated 7.5.1990 (Housing & Urban Development) Department, the Government have issued orders to regularise the services of the N.M.R. Persons in the TNHB who have been appointed through/not through employment exchange and who have put in continuous service of 5 years on the date of issue of the order. In accordance with the Government Order, about 100 N.M.R. persons have been regularised and brought into regular time scale of pay under the Work Charged Establishment (for brevity, “WCE”) in 16 Board Categories. The categories in which they were regularised are Work Assistants in the Scale of pay of Rs.950-1500 and others in the category of Electrician, Pump Operator, Carpenter, Mazdoor, scavenger, etc., in the scale of pay of Rs.750-945.
3. To avoid complications in assigning designation in which N.M.Rs have been regularised, at the time of regularisation, a uniform procedure was said to have been adopted that the designation at the time of sending proposal to the Government has been taken into account to assign the category. The designation was assigned to all the N.M.R.personnel taking into account of the designations furnished by the Executive Engineers and as informed to the Government in the Board’s letter dated 10.10.1986.
4. The Respondents were employed as NMRs by the TNHB from various periods. grievance of Respondents is that they were regularised between the years 1991-1992 after completing five years of service in the post of Mazdoor/watchman, pump operator in the lower scale of Rs.750-945 instead of being regularised as Work Assistant in the scale of Rs.950-1500 commensurate to their qualification and work. The case of Respondents is that as they were regularised in the lower scale of pay, Mazdoor/Watchman/Pump Operator, they have sent number of representations to the TNHB and to the Government that they were wrongly regularised in the lower scale of pay. According to Respondents, they were discharging duties as Gumasthas/ clerical work that was entrusted to them and they ought to have been regularised as Work Assistants. Appellant Board made a consolidated list of 162 persons and sent the proposal to the Government seeking approval to change their posting and pay scales in 1997. In the said circumstances, W.P.No.15985 of 1998 came to be filed on the ground that Board’s inaction was unjust and seeking for a mandamus to direct the Board to re-designate them as Work Assistants in the higher scale of pay of Rs.950-1500 with effect from the original dates they were regularised as mazdoors with all attendant benefits. In the batch of writ petitions, the Respondents also averred that the Board has re-designated four others as Work Assistants by order dated 5.3.1993 but the same was denied to them. In W.P.M.P.No.24147 of 1998 in W.P.No.15985 of 1998, the learned single Judge has passed interim order directing the Board (T.N.H.B) to pay Rs.950-1500 from September 1999 onwards with usual Dearness Allowance, House Rent Allowance and all other service benefits.
5. G.O.Ms.No.291 dated 13.7.2000 was issued re-designating services of 169 persons as Work Assistants including the Respondents. Accordingly, benefits were given to 169 persons including the Respondents from the date of issue of the aforesaid G.O., and arrears was also paid. Challenging G.O.Ms.No.291 dated 13.7.2000 and seeking for direction to re-designate Respondents as Work Assistants in the scale of pay of Rs.3050-4500 i.e., with effect from their original dates of regularisation, the Respondents have filed the writ petitions.
6. The Appellants resisted all the writ Petitions contending that the Respondents have been regularised in the WCE posts and were placed in lower categories. According to the Appellants, regularisation of N.M.Rs have been made based on the report sent by Executive Engineers and has informed to the Government in the Board’s letter dated 10.10.1986. According to the Appellants, that bringing N.M.R.employees into time- scale of pay from daily wages itself, is a major concession and the Respondents cannot seek re-designation as Work Assistants in the higher category i.e., “Work Assistants” from the original date of their regularisation.
7. Upon consideration of the rival contentions, the learned single Judge held that the regularisation of the Respondents in the lower post and lower time scale of pay is clearly in violation of Articles 14 and 16 of Constitution of India. The learned single Judge further held that even though Respondents are no way different from other N.M.R. employees, re-designation of other N.M.Rs, who are on par with Respondents in the higher scale of pay and regularising Respondents in lower scale of pay is wholly unjustified. On those findings, the learned single Judge allowed all the writ petitions and directed the Appellants to re-designate the Respondents in the post of “Work Assistants” from the date of their original regularisation and further directed Appellant Board to implement the Order within a period of three months from the date of receipt of a copy of the order.
8. Challenging the order of single Judge, Mr.P.Wilson, learned Additional Advocate General submitted that the regularisation of Respondents/N.M.Rs and bringing them into time scale of pay itself was a major concession extended to them. The learned counsel further argued that the N.M.Rs were regularised in various posts based upon their nature of functions assigned to them and based on report of the concerned Executive Engineers and there cannot be any grievance. It was submitted that the prayer sought for by the Respondents seeking retrospective regularisation to the post of ‘Work Assistant’ with the same scale of pay cannot be countenanced. It was further argued that attending to Gumastha’s work at times does not by itself make them on par with others and while so the order of single Judge is against the well settled principles. It was further contended that while ordering regularisation from 7.12.1988 the learned single Judge did not keep in view the additional financial commitments and heavy financial burden that would be cast upon the Housing Board.
9. Learned counsel for the Respondents Ms.Anna Mathew contended that while the Respondents have been doing similar work as that of Gumasthas they have been unjustly regularised as Mazdoor/watchman/pump operator in the lower scale of pay. It was further submitted that even the persons, who are juniors to the Respondents, have been regularised as Work Assistants in the higher scale of pay and the Respondents were discriminated and the action of the Respondents, being arbitrary and discriminatory,the learned single judge rightly allowed the writ petitions. Taking us through G.O.Ms.No.291 dated 13.7.2000, the learned counsel would further submit that the disparity was well taken note of by Government and while so higher pay scale cannot be deprived from the date of their original regularisation.
10. In accordance with Government Orders in G.O.Ms.No.1603 (dated 7.12.1988) and 400 (dated 7.5.1990) (Housing & Urban Development) Department, 1000 N.M.Rs have been regularised and they were brought into regular time scale of pay WCE posts in 16 categories. The details of scales of pay and category under WCE are as under:
S.No. Name of Old Scale New Scale the category of Pay of Pay 1.Work Assistant (SSLC Passed) 950-1500 3050-75-3950-80-4890 2.Work Assistant ) (SSLC failed) ) 3.Maistry ) 4.Electrician ) 2650-55-2660-60-3200 5.Pump Operator ) 6.Carpenter ) 7.Head Mazdoor ) 8.Pump Attender ) 2550-55-2660-60-3200 9.Mazdoor ) 10.Scavenger ) 11.Sanitary Mazdoor ) 12.Gardener 750-945 ) 13.Tank Cleaner ) 14.Sweeper ) 15.Watchman )
11. Learned Additional Advocate General Mr.P.Wilson has drawn our attention to the principles laid down by the Supreme Court in various decisions in respect of public appointments and submitted that inasmuch as regularisation itself was a concession extended to the Respondents they cannot insist upon re-designation as “Work Assistants” with effect from their original date of regularisation. Learned Additional Advocate General Placed reliance upon 2004(7) SCC 112 (A. Umarani v. Registrar, Coop. Societies wherein the Supreme Court has held that regularisation is and cannot be the mode of recruitment.
12. Mr.P.Wilson submitted that the Supreme Court in Umadevi’s case 2006(4) SCC 1 has heavily come down against the appointments being given by way of regularisation and has observed that any appointments against the constitutional scheme should be set aside. In (2007) 1 SCC 408 (Indian Drugs & Pharmaceuticals Ltd. v. Workmen), after referring the decision in Umadevi’s case 2006(4) SCC 1 and other decisions, the Supreme Court has held that appointments made without advertisement or without inviting applications from the open market was held to be in flagrant breach of Articles 14 and 16 of Constitution of India. It is fairly well settled that regularisation is not a mode of appointment.
13. It is well settled that regularisation can be done only in accordance with the Rules and not dehors the rules. However, since the respondents and other N.M.Rs were already regularised way back in 1988 and 1990, we do not propose to go into the propriety or validity of regularisation. Suffice it to note that as contended by learned Additional Advocate General Mr.P.Wilson, regularisation as per the Government Order No.1603 dated 7.12.1988 and 400 dated 2.5.1990 (Housing & Urban Development) Department itself was a concession extended to the N.M.Rs including the Respondents.
14. The grievance of Respondents is that they have been doing work of Gumastha/clerical work and while so they have unjustly regularised in the lower scale of pay. The learned counsel for Respondents has drawn our attention to the proceedings of Housing Board, Vellore unit dated 6.3.1991, whereby the Respondent K.Jayaprakash was instructed to post upto date entries in the Recovery ledger and tally with General ledger. The learned counsel for Respondent has also drawn our attention to other proceedings of the TNHB, Vellore Housing Unit dated 12.8.1994 whereby some of the Respondents were deployed for collection work. Likewise, by letter of TNHB dated 7.11.1983 some of the Respondents including D.Manohar Paulraj were instructed to attend to the special work relating to posting of missing entries for the period from 11/79 to 3/81. Laying emphasis upon those proceedings/letters whereby some of the Respondents were asked to do clerical work, the learned counsel for Respondents contended that while Respondents were attending to Gumastha work/clerical work, they were unjustly regularised as Mazdoor/watchman/pump operator and discriminated against by bringing them into lower time scale of pay. It was further contended regularising them in the lower time scale of pay caused great disparity in the scales of pay of the Respondents, which is in clear violation of Articles 14 and 16 of Constitution of India.
15. When the N.M.Rs were regularised as per the Government Order, as seen from proceedings of Tamilnadu Housing Board, Vellore Housing Unit dated 23.5.1990, Respondent K.Jayaprakash was regularised as pump operator. Likewise, the other Respondents and other Mazdoor workmen have been regularised in the lower scale of pay as Mazdoor/Night watchman/gardener,etc., It is relevant to note that even though the Respondents were regularised in the lower scale of pay, the Respondents and others have accepted regularisation in the respective categories without raising any objection. The Respondents have not challenged before any Court of law their initial regularisation alleging disparity. When there was no contemporaneous challenge and having accepted the regularisation in the lower scale of pay, the Respondents are estopped from claiming that they ought to have been regularised as Work Assistants. The Respondents had accepted regularisation in the lower scale of pay is a militating factor against them.
16. In the writ petitions, the Respondents have averred that as soon as they were regularised in the lower scale, i.e., Mazdoor/watchman, etc., they immediately represented to the Government and to the Board and requested that the injustice meted out to them be rectified. Even though the Respondents have stated that they have immediately made representation to the Government and to the Board, in the typed set of papers, we do not find any materials to substantiate the same excepting one representation of Respondent Manohar Paulraj dated 5.6.1990. However, it is noticed that based on representation of the Union, taking note of the fact that left over persons viz., about 169 individuals have to be provided with the uniform scale of pay, during the year 1992, the Housing Board has sent a proposal to the Government to re-designate 162 qualified persons in various categories to enable them to get the same scale of pay payable to the Work Assistant.
17. The Respondents and other similarly placed N.M.Rs were regularised in various categories in lower scales of pay. The N.M.Rs must have been regularised only as against sanctioned post/cadre strength. Regularisation must have been done only as against the sanctioned number of posts of Work Assistants/ Mazdoor/ Pump Operator/Gardener/ Watchman/ Sweeper, etc., Creation of number of posts is within the exclusive domain of the executive. At the time when NMRs were ordered to be regularised, all the N.M.Rs could not have been regularised as Work Assistants. There was no scope for regularising all N.M.Rs as Work Assistants unless there were sanctioned posts.
18. In AIR 1988 SUPREME COURT 1291 = (1988) 3 SCC 91 (FEDERATION OF ALL INDIA CUSTOMS AND CENTRAL EXCISE STENOGRAPHERS (RECOGNISED) AND OTHERS VS. UNION OF INDIA AND OTHERS), the Supreme Court held in paragraph No.7 as under:
“7…… that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right….”
19. If all the N.M.Rs are to be regularised as Work Assistants in the scale of pay financial burden on the Housing Board would have been heavy. So long as the decision taken by Government/Board in regularising NMRs in 16 categories of WCEs, we do not find any arbitrariness nor infraction of the rights of the Respondents.
20. To contend that the Respondents were discriminated in regularisation, in all the writ petitions, Respondents have referred to copy of Board proceedings Memo No.E.Spl.2/402/93 dated 5.3.1993, whereby (1) Tmt.R.Padmavathi, (2) Tmt.P.G.Thenmozhi, (3) S.Vasantha, (4) Thiru.Damodaran, who are stated to be juniors to the Respondents, were regularised as Work Assistants on completion of their five years service (duty period). This proceedings of regularising juniors appears to have caused repercussion amongst 162 WCE personnel sending representations both to Government and to the Board. In the counter affidavit filed in W.P.No.15985 of 1998 and also in the grounds of appeal, TNHB has stated that during the year 1992, Appellant Board has sent a proposal to the Government to re-designate 162 qualified personnel as Work Assistants. The Government have negatived the proposal by its letter dated 26.9.1995 because the Government observed that the TNHB has high overhead cost.
21. TNHB has again reiterated its proposal by its letter dated 19.9.1997 stating that 162 persons even after having S.S.L.C.passed and such other higher qualification, were appointed below the cadre of Work Assistant and soliciting orders. In response, Government sent letter dated 6.7.1998 asking TNHB to clarify whether similarly placed NMRs working in the city divisions were already been re-designated in the scale of pay of Rs.950-1500 and if so why the same concession was not extended to the 162 persons for whom the Government Orders was requested. Laying emphasis upon the said letter of Government dated 6.7.1998, learned counsel for Appellant contended that in its letter Government itself asked why the benefit was not extended to the 162 persons. It was therefore contended that 162 employees having requisite qualifications were regularised in lower scale of pay and learned single Judge rightly held that the same was in violation of Articles 14 and 16 of Constitution of India. In our considered view, the letter of Government dated 6.7.1998 was only response to the proposal sent by the Housing Board on 19.9.1997. While asking for a clarification as to why the concession was not extended to the 162 persons having requisite qualification, the Government also asked Housing Board as to whether it is necessary to adopt uniform policy for the entire TNHB in all such cases. In our considered view, the said letter of Government dated 6.7.1998 by itself will not clothe them the right to the Respondents to seek for re-designation as work Assistants from the date of their regularisation. It was thereafter the first Writ Petition W.P.No.15985 of 1998 came to be filed.
22. As pointed out earlier, TNHB adopted uniform procedure at the time of sending proposal to the Government by taking into account the designations furnished by the Executive Engineers. The Executive Engineers from various units have sent the proposals and the same was informed to the Government in the Board’s letter dated 10.10.1986. As rightly submitted by learned Additional Advocate General Mr.P.Wilson, it would not have been possible to regularise the entire N.M.Rs to higher category i.e., as Work Assistant at a stretch. We are unable to subscribe to the view taken by learned single Judge that in the regularisation of the Respondents, there was violation of Articles 14 and 16 of Constitution of India. In our considered view, the learned single Judge did not keep in view that there were not requisite number of posts as Work Assistants when G.O.Ms.No.1603 dated 7.12.1988 and G.O.Ms.No.400 dated 2.5.1990 were passed. The learned single Judge did not keep in view the realities and the difficulties of TNHB and its financial commitments.
23. Noticing disparity, Appellant Board in its resolution No.704 dated 26.5.1999 resolved to re-designate the qualified Work Charged personnel as Work Assistants and recommended to the Government. While approving the resolution passed by TNHB and while passing G.O.Ms.No.291 dated 13.7.2000, Government took note of the disparity and that several employees, who are graduates and higher secondary qualification have been regularised in lower scales of pay. The relevant portion of G.O. reads as under:
“,th;fspy; E}w;W mWgJf;Fk; nkw;gl;l Chah;fs; gs;sp ,Wjpj; njh;tpy; njh;r;rp; bgw;Wk; mjw;F nkYk; fy;tpj; jFjp cs;sth;fshf cs;sdh;/ ,th;fspd; gzptud;Kiw bra;ag;gLk; rkaj;jpy;. fy;tpj; jFjp kw;Wk; gzpj;jil ,tw;wpid fUj;jpw;bfhs;shky;. ,th;fs; jpdf;Typfshf vd;bdd;d gjtpfspy; Cjpak; bgw;W te;jdnuh me;jg; gjtpfspnyna. gzptud;Kiw bra;ag;gl;ldh;/ ,jdhy; xU rhuhUf;F cah;e;j rk;gs tpfpjKk; kw;bwhU rhuhUf;F Fiwe;j rk;gs tpfpjKk; eph;zapf;fg;gl;lJ/ KJfiyg; gl;lk;. ,s’;fiyg;gl;lk;.nky;epiyf; fy;tpj; njh;r;rp bgw;w gy CHpah;fs; k!;J}h;. gk;g; Xl;Leh;. fhtyh;. Jg;g[uthsh; nghd;w gjtpfspy; kpft[k; Fiwe;j Cjpa tpfpjj;jpy; gzptud;Kiw bra;ag;gl;ldh;/ Mdhy; gs;sp ,Wjpj; njh;t[ njh;r;rp bgw;w gyh; gzp cjtpahsh; vd;w gjtpapy; cah;e;j rk;gs Vw;w Kiwapy; gzptud;Kiw bra;ag;gl;ldh;/ nkw;Twpa ,UrhuhUk; xnu rhh;ghd gzpfis thhpaj;jpy; bra;J te;jhYk;. ,th;fspilna Cjpa ntWghL. mth;fs; tfpf;Fk; gjtpfspd; bgah;fs; khWgl;L ,Ug;gjhYk; Chpah;fspilna ghFghLfs; fhzg;gLk; NH;epiy Vw;gl;Ls;sJ/
2/ xnu rhh;ghd gzpfis thhpaj;jpy; bra;J tUk; gzpahsh;fspilna Cjpa ntWghLk; mth;fs; tfpf;Fk; gjtpfspd; bgah;fs; khWgl;L ,Ug;gjhYk;. 169 ntiy epjpg; gzpahsh;fs;. cah; fy;tpj;jFjp bgw;wp[Ue;Jk;. ,sepiy cjtpahsh;fspd; gzpfis bra;J tUtjhy; thhpaj;jpy; jw;nghJ gzpg[hpa[k; 159 ntiy epjpg; gzpahsh;fis. gzp cjtpahsh; vDk; gjtpf;F gjtp khw;wk; bra;antz;Lk; vd;W thhpaj;jpd; nkyhz;ik ,af;Feh; muirf; nfl;Lf; bfhz;Ls;shh;/ ”
24. In the said G.O., the Board has approved the resolution of TNHB dated 26.5.1999 and ordered change of nomenclature and disparity in the pay scales. G.O.Ms.No.291 Housing & Urban Development Department dated 13.7.2000 does not indicate the date from which 162 persons in WCE are to be re-designated as Work Assistants. Pursuant to G.O.Ms.No.291, dated 13.7.2000 TNHB in its proceedings No.Pa.Tha.P.2/27425/92-1 dated 31.7.2000 ordered that 163 N.M.R. employees be given time scale of pay in the post of Work Assistant(SSLC passed) from 13.7.2000.
25. After referring to 1990 Supplement SCC 262 (DOORDARSHAN CAMERAMEN’S WELFARE ASSOCIATION VS. UNION OF INDIA AND OTHERS), the learned single Judge took the view that there cannot be any disparity in salary paid and it otherwise would be discriminatory. In the said decision, the disparity in salary appears to be on the order passed by the Court.
26. In the above referred judgment of the Supreme Court, the writ petition has been filed by the Union representing the members of the staff working in the Camera Section of the Doordarshan Kendra. Earlier there were three writ petitions from three categories of Staff Artistes of Doordarshan. The Sound Recordists of Doordarshan claimed the pay scale admissible to the Recordists of the Films Division. Cameramen Grade II demanded pay scale allowed to Cameramen of the Films Division. The Lighting Assistants/Lightmen claimed the pay scale entitled to the Assistant Cameramen in the Films Division. It was found that the staff Artists of Doordarsan are Government servants like their counterparts and film division and that they were performing same duties as those of the counterparts in the films division and that Sound Recordists in Doordarsan are equivalent to Recordists in the Film Division and Cameramen Grade II in Doordarsan are similar to Cameraman in Films Division, it was held that it would be unreasonable and unjust to discriminate against the said Artists of Doordarsan in the matter of pay scale.
27. In our considered view, the ratio of the above decision cannot be applied to the case on hand, where the respondents and others have joined the respective posts of their regularisation without any protest. Having not challenged their initial regularisation in the lower scale of pay the Respondents are estopped from claiming that they have to be regularised as that of Work Assistant from the initial date of regularisation. Having not challenged their initial regularisation, the respondents cannot now challenge the same under the guise of disparity in pay scale.
28. Taking us through the grounds of appeal and the events, the learned Additional Advocate General Mr.P.Wilson submitted that even in the year 1992, Appellant Board has sent a proposal to the Government to re-designate 162 qualified persons into higher categories i.e., Work Assistants and the Government observed that TNHB has very high overhead cost and negatived the proposal. Again during the year 1998, Board has addressed the Government to re-consider the issue. Thereafter the Board in its resolution No.704 dated 26.5.1999 also resolved to re-designate the qualified Work Charged personnel as Work Assistants and recommended to the Government and the same was accepted by the Government and G.O.Ms.No.291 dated 13.7.2000 was passed. Thereafter the Housing Board has ordered higher pay scale be paid from 13.7.2000.
29. Respondents are seeking for writ of mandamus to direct the Appellant Board to re-designate them as Work Assistants with higher pay with effect from their original dates of regularisation. The Respondents, who are seeking for a relief of mandamus, have to prove their entitlement that there is a legal duty on the authority and the aggrieved party had a legal right to enforce the same. The Respondents have not shown any such right, much less legal right, to seek for direction for higher pay from the date of their original regularisation.
30. Mr.P.Wilson submitted that if the order of single Judge has to be sustained, the financial constraints upon the Housing Board will be around Rs.3 Crores, which would be heavy burden upon the Housing Board. Placing reliance upon HARYANA STATE MINOR IRRIGATION TUBEWELLS CORPORATION AND OTHERS VS. G.S.UPPAL AND OTHERS (2008) 7 SCC 375, learned counsel for Respondents Ms.Anna Mathew submitted that finical constraints, if any, cannot be an impediment in directing the payment of time scale of pay from the date of their original regularisation, which is due to the respondents. In the said, case, the Haryana State Minor Irrigation Tubewells Corporation (in short, HSMITC), paid higher scale of pay to employees taken on deputation from State Government, but refused to extend higher pay scales to its own cadre on the ground of financial constraints. The HSMITC conceded in principle that there should be parity in pay scales of its own employees with the pay scale for State Government employees, but taken a stand that it was running to losses stating the reason of financial constraints in not paying the same pay scale to its own cadre. In such facts and circumstances of the case, the Supreme Court held that Corporation owned employees are also entitled to parity with regard to pay scales and that HSMITC was running into losses, economy measures cannot be a valid ground for refusing parity. The ratio of the above decision is not applicable to the case on hand, wherein the Respondents herein are seeking higher scales of pay from the date of their original regularisation, which they have not chosen to challenge at the relevant point.
31. In HSMITC case,(2008(7) SCC 375), the Supreme Court has held as under:
“….fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. (See K.T.Veerappa v. State of Karnataks (2006) 9 SCC 406.)”
32. Granting of pay scales is within the exclusive domain of the executive and within the constitutional framework of separation of powers. Keeping in view the financial commitments and the object of Housing Board, Appellant Housing Board has ordered payment of higher scale of pay with effect from 13.7.2000. It is the prerogative right of the executive having the assistance of experts with requisite expertise to undertake examination of several factors in granting pay scales. Court cannot arrogate to itself the powers of the Executive.
33. The order of single Judge is applicable to 57 persons. It was stated before us that there are about 112 persons, who may follow the footsteps of Respondents. Learned Additional Advocate General Mr.P.Wilson submitted that if the prayer sought for in the writ petition is to be sustained, Housing Board will incur financial constraints to the extent of Rs.87 lakhs insofar as 57 persons, who have approached the Court. It was stated that insofar as other 112 persons, the financial burden on TNHB would work out to Rs.3 Crores. Any relief of regularisation with retrospective effect will have serious financial implications upon Appellant Housing Board. Tamnilnadu Housing Board has its social objectives like providing housing to poor, lower income and its social commitments to accomplish its objectives. In our considered view, the burden of Housing Board with heavy financial commitments would have serious consequences.
34. That apart, others were regularised as Work Assistants and they are so functioning for more than 12 years. If the Respondents are to be regularised with retrospective effect, it will affect the settled position and upset the seniority and thereby it will pave the way of creating pay anomaly in the seniority among the other persons. Having regard to the financial constraints on the Housing Board and the anomaly likely to be caused, the order of single Judge directing re-designation of the respondents as Work Assistants from the date of their original regularisation and payment of higher scale of pay cannot be sustained.
35. The only point left for consideration is the date from which salary in the time scale of Work Assistants has to be given to Respondents. As we pointed out earlier, in W.P.M.P.No.14147 of 1998 in W.P.No.15985 of 1998, by an interim order dated 26.7.1999 Board was directed to pay to the writ petitioners therein minimum pay of Rs.950-1500 from September 2009 onwards with usual D.A., H.R.A., and other service benefits. Of course, proceedings of TNHB dated 31.7.2000 deviates from the order of the single Judge. Pursuant to the interim order, the writ petitioners in W.P.No.15985 of 1998 were paid scale of pay of Rs.950-1500 for the Work Assistant. If the proceedings of TNHB is to be given effect to i.e., to pay the salary in the scale of pay of Work Assistant, there will be disparity amongst similarly placed persons. In our considered view, there has to be uniformity in extending the benefit and there shall not be any disparity in the benefit of paying the scale of pay of Work Assistant to the similarly placed persons.
36. As submitted by the learned Additional Advocate General, Housing Board has passed the resolution No.704 dated 26.5.1999 resolving to re-designate qualified work Charged personnel as Work Assistants and also recommended to the Government. In our considered view, as per G.O.Ms.No.291 dated 13.7.2000 time scale of pay for Work Assistants be given with effect from 26.5.1999 on which date the Board has passed the resolution resolving to re-designate qualified work Charged personnel as Work Assistants.
37. In the result, the order dated 2.2.2009 of the single Judge in W.P.Nos.15985 of 1998, 4403 and 21290 of 2005 is set aside and these writ appeals are allowed. The respondents shall be re-designated as Work Assistants with effect from 26.5.1999 and they shall be paid the time scale of Work Assistant with effect from 26.5.1999 on which date the TNHB has passed a resolution. The parties are directed to bear their respective costs.
(R.B.I.,J.) (M.V.,J.)
10.03.2010
Index:Yes
Internet:Yes
usk
Copy to:
1. The Managing Director
Tamil Nadu Housing Board
331, Anna Salai
Nandanam B.O., Chennai
2. The Secretary to Government
Housing & Urban
Development Department
Fort St.George
Chennai 600 009.
R.BANUMATHI,J.
AND
M.VENUGOPAL,J. usk
Pre-Delivery Judgment in
W.A.Nos.1483 to 1485 of 2009
10.03.2010
