{"id":50740,"date":"2007-09-07T00:00:00","date_gmt":"2007-09-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-pandi-vs-state-of-tamilnadu-on-7-september-2007"},"modified":"2014-05-23T05:16:12","modified_gmt":"2014-05-22T23:46:12","slug":"a-pandi-vs-state-of-tamilnadu-on-7-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-pandi-vs-state-of-tamilnadu-on-7-september-2007","title":{"rendered":"A.Pandi vs State Of Tamilnadu on 7 September, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Pandi vs State Of Tamilnadu on 7 September, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 07\/09\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE K. CHANDRU\n\n\nW.P.(MD) No.2252 of 2007,\nW.P.(MD) No.10011 of 2006\nand M.P.Nos.  2 and 3 of 2007\nand M.P.Nos 1 of 2006 and 1 of 2007\n\n\nW.P.No.2252 of 2007\t\t\t\n\n1.A.Pandi\n2.Ratnam\n3.K.Raman\n4.V.Kondalan\n5.M.Kathavarayan\n6.M.Marudhan\n7.Karuppiah\n8.A.Rajendran\n9.C.Thangasamy\n10.P.Swami\n11.S.P.Ayyadurai\n12.K.Kali\n13.A.Muthuraman\n14.A.Subramani          ... \t\tPetitioners\n\n\nVs\n\n\n1.State of Tamilnadu\n  rep. By the Secretary\n  Animal Husbandary Dairying and\n  Fisheries (Poultry) Department\n  Fort St.George,\n  Chennai - 600 009.\n\n2. The Commissioner and Director\n   of Animal Husbandary and Veterinary\n   Services Central Officer Building,\n   Block-II, DMS Compound,\n   Chennai 600 006. \t... \t\tRespondents\n\n\n\n\nW.P.No.10011 of 2006\n\n\nB. Subramaniam\t\t... \t\tPetitioners\n\t\nvs\n\n1. State of Tamilnadu\n  rep. By the Secretary\n  Animal Husbandary Dairying and\n  Fisheries (Poultry) Department\n  Fort St.George,\n  Chennai - 600 009.\n\n2. The Commissioner and Director\n   of Animal Husbandary and Veterinary\n   Services Central Officer Building,\n   Block-II, DMS Compound,\n   Chennai 600 006.\n\n3. The Joint Director of Animal\n   Husbandary, Additional incharge,\n   Dr.Thangaraj Salai,\n   Veterinary Hospital Campus,\n   Madurai 625 020.\t... \t\tRespondents\n\n\n\nPrayer in W.P.No.2252 of 2007: Petition filed under Article 226 of the\nConstitution of India, to issue a Writ of Certiorarified Mandamus to call for\nthe records of the letter No.13742\/Poultry\/2005-4 dated 28.11.2005 issued by the\n1st respondent and followed in letter No.26159\/Poul\/2005-06 dated 25.10.2006\nfrom the 1st respondent and quash the same and directing the respondents to\ngrant the benefit of pay as per G.O.Ms.162 Finance(PC) Department dated\n13.04.1998 with effect from 12.06.2000 with 40% of the basic pay for arriving a\nthe total emoulments.\n\n\nPrayer in W.P.No.10011 of 2006: Petition filed under Article 226 of the\nConstitution of India, to issue a Writ of Certiorari to call for the records\nfrom the 3rd respondent in Na.Ka.No.3911\/M\/2005, dated 02.08.2006 and quash the\nsame.\n\t\n\n\n!For Petitioners in \t\t...\tMr. R.S.Ramanathan\nboth writ petitions\n\n\n^For Respondents in\t       \t...\tMr.S.C.Herold Singh\n\t\t\t\t\tboth the writ petitions\tGovernment Advocate\n\n\n:ORDER\n<\/pre>\n
\tThe petitioners are employees of the Tamilnadu Poultry Development
\nCorporation Limited (hereinafter referred as TAPCO) which is a wholly owned
\nState Government Company.  The Government had taken a policy decision to abolish
\nthe TAPCO by G.O.Ms.No.86, Animal Husbandry and Fisheries (TAPCO) Department,
\ndated 19.04.1999.\n<\/p>\n
\t2.In that Government Order on account of abolition of TAPCO, certain
\nemployees who were already entrusted with the work of supply of eggs to Noon
\nMeal Centres alone were sought to be absorbed in the Animal Husbandry and
\nFisheries Department.  For others they were given marching orders.  As this had
\nresulted in discriminatory treatment because posting by the Corporation of an
\nemployee in  a particular place has due to fortuitous circumstances those
\nemployees through their Association challenged that portion of the Government’s
\nOrder found in paragraph 4(i) before this Court in W.P.No.7784 of 1999.\n<\/p>\n
\t3.This Court agreed with the submission of the said Association and
\nallowed the writ petition by judgment dated 23.02.2000. This Court held that the
\nDepartment cannot make the post for the   particular employees and therefore,
\nthe other employees should also be given opportunities to get absorption in
\nother departments. The Government was directed to pass appropriate orders in
\nrespect of the remaining 141 workmen.\n<\/p>\n
\t4. The first respondent\/State in order to abide by the judgment of this
\nCourt, issued an order in G.O.Ms.No.91, Animal Husbandry and Fisheries (TAPCO)
\nDepartment dated 06.06.2000.  In that order excepting for two persons 139 posts
\nwere created under 16 categories  to accommodate erstwhile employees of TAPCO.
\nIn paragraph 5 of the said order the following conditions were imposed by the
\nGovernment:-\n<\/p>\n
PARA 5:  The transfer of 139 posts, under 16 categories and the appointment to
\nthe posts will be under the following conditions:-\n<\/p>\n
\t(i) Except the personnel on whom disciplinary action is pending and who
\nare on long leave, others will be appointed in the basis of seniority.\n<\/p>\n
\t(ii) If the personnel who are being transferred to the Animal Husbandry
\nDepartment do not have the required qualification of age, education, sponsored
\nby the Employment Exchange or Special training, these qualifications will be
\nrelaxed before their regular appointment.  The Director of Veterinary Services
\nis requested to send necessary proposals in this regard.\n<\/p>\n
\t(iii) These personnel will be considered as Government Servants only on
\nthe dates of their joining in the Department of Animal Husbandry on transfer.
\nThe transfer will be with immediate effect.\n<\/p>\n
\t(iv)  Their pay and allowances will be refixed with effect from the date
\nof joining in the  Department.\n<\/p>\n
\t(v)  The seniority will be fixed below the seniority of the personnel of
\nthe Department of Animal Husbandry Department working on that date, in that
\ncategory.\n<\/p>\n
\t(vi) The leave earned by the personnel in the Tamilnadu Poultry
\nDevelopment Corporation Limited shall be transferred to the Department of Animal
\nHusbandry.\n<\/p>\n
\t(vii)  The Employees provident fund Account will be transferred to the
\nGeneral Provident Fund Account and a new account will be opened.\n<\/p>\n
\t(viii) The Group Insurance Scheme will be closed and transferred to the
\nGovernment.\n<\/p>\n
\t(ix) Their Service will be regularized from the date of their joining in
\nthe Department of Animal Husbandry.\n<\/p>\n
\t(x) The personal working in the Department of Animal Husbandry already
\nwill be transferred back to the Tamilnadu Poultry Development Corporation
\nLimited with immediate effect.\n<\/p>\n
\t(xii) The services rendered in the Department of Animal Husbandry from
\n09.07.1999 till the date of transfer to the Tamilnadu Poultry Development
\nCorporation Limited will be treated as services rendered continuously in the
\nTamilnadu Poultry Development Corporation Limited.\n<\/p>\n
\t5. Thereafter, these employees were absorbed in various posts under the
\nAnimal Husbandry Department.  After their entry into services an order was
\nissued by the first respondent dated 15.04.2005 with regard to the fixation of
\nsalary. Paragraphs 2 and 3 of the said order is extracted below:\n<\/p>\n
PARA 2: It is observed that the ex-employees of erstwhile TAPCO were appointed
\nnewly in the Government service (Though on transfer) by giving relaxation to
\nvarious conditions in respect of age, qualification, training etc.  As such
\ntheir pay has to be refixed only at the minimum of the revised scale of pay to
\nwhich they are eligible from the date of their joining the Government Service
\ni.e. On 12.06.2000.\n<\/p>\n
PARA 3: Based on the orders issued in Para 5(iv) of the G.O.Ms.No.91, Animal
\nHusbandry and Fisheries Department dated 06.06.2000 and also considering the
\nrepresentation preferred and working at the Directorate of Veterinary Services,
\nit has been decided, that the pay of these staff shall be refixed with effect
\nfrom the date of their joining in Government Service in the Directorate of
\nVeterinary Services (i.e.12.6.2000) with arrears.  If the employees appointed in
\nthe Directorate of Veterinary Services are considered on new entry basis in the
\nGovernment Service then their pay may be refixed at the appropriate stage in the
\nrevised time scale of pay 148% of the dearness allowance, personal pay, if any,
\nfirst and second instalments of interim relief sanctioned.  If any, there by
\narising at the total emoluments.  The pay may be refixed at the same stage if
\nthere is a stage in the revised scale and at the next stage if there is no such
\nstage.\n<\/p>\n
\t6. After implementing V Pay Commission’s pay fixation as there were
\nanomalies with reference to revision of pay scale, an official committee was
\nappointed to give finality to the said issue and the recommendations of the said
\ncommittee was implemented by the issuance of Government Order in G.O.Ms.No.162
\nFinance (Pay Cell) Department dated 13.04.1998.  The said order also contains
\nvarious tables as to how the pay should be fixed by taking into account the 40%
\nof the basic pay for the purpose of fixing appropriate fitment.  The employees
\nincluding the erstwhile TAPCO employees, including the petitioner herein wanted
\nto have the said formula to be extended to them and in view of the same further
\nclarification was issued by the first respondent\/State by a letter dated
\n28.11.2005.\n<\/p>\n
\t7. In the said letter in respect of the erstwhile TAPCO employees the
\nfollowing orders of the Government Order was issued:\n<\/p>\n
PARA 2: In this connection I am directed to invite attention to the instruction
\nissued in para 3 of the Government letter first cited, wherein the pay of the
\nerstwhile employees of Tamilnadu Poultry Development Corporation Limited may be
\nrefixed at the appropriate stage in the revised time scale of pay by taking into
\naccount the basic pay if any, first and second instalment of interim relief
\nsanctioned, if any thereby arriving at the total emoluments.  The pay may be
\nrefixed at the same stage if there is a stage is the revised scale and at the
\nnext stage if there is no such stage.  Hence, I am directed to clarify that the
\nquestion of allowing 40% of the pay as mentioned in G.O.Ms.No.162, Finance(PC)
\nDepartment, dated 13.4.1998 arriving at the total emoluments does not arise.\n<\/p>\n
\t8. It was made clear by the said order that the question of allowing 40%
\nof the pay mentioned in G.O.Ms.No.162 Finance(Pay Cell) Department dated
\n13.04.1998 was not exclusively extended to the erstwhile TAPCO employees whose
\nservices were transferred and treated as fresh entrants.  Even thereafter, a
\nclarification was sought for by the Commissioner and Director of Animal
\nHusbandry and Veterinary Services and another clarification dated 25.10.2006
\nwith reference to the same was issued and the relevant para  of the said order
\nis stated as follows:\n<\/p>\n
PARA 2:  The ex-employees of erstwhile Tamilnadu Poultry Development Corporation
\nwere appointed newly in the Government service by giving relaxation to various
\nconditions in respect of age, qualification etc., As such their pay has to be
\nrefixed only at appropriate stage of the revised scale of pay, to which they are
\neligible.  Since the ex-staff of the erstwhile Tamilnadu Poultry Development
\nCorporation were appointed in the Director of Veterinary Services are considered
\non new entry basis in Government Services, the refixation of pay as per
\nG.O.Ms.No.162, Finance(PC) Department, dated 13.04.1998 with effect from
\n12.06.2000 with 40% of pay for arriving total emoluments does not arise.\n<\/p>\n
\t9. It is this clarification which now under challenge by the 14
\npetitioners who are holding different posts when they were belonged to the same
\nclass namely erstwhile TAPCO employees and whose services were absorbed by the
\nGovernment to the Animal Husbandry Department.  In the meanwhile the Department
\nfixed the scale of pay to these petitioners and granted 40% of pay as a fitment
\nformula as make available in G.O.Ms.No.162 dated 13.04.1998.\n<\/p>\n
\t10. When objections were raised the department sought to recover the said
\namount from the employees.  One workmen by name Mr.B.Balasubramaniam who was
\nworking as a Junior Assistant in the third respondent department filed a writ
\npetition in W.P.No.10011 of 2006 against the recovery order and had also
\nobtained an interim stay of recovery which is still in force.  In view of the
\ninterconnecting of both the writ petitions the matters were taken up together
\nfor final disposal.\n<\/p>\n
\t11. Heard Mr.R.S.Ramanathan, the learned counsel appearing for the
\npetitioners in both the writ petitions and also Mr.H.C.Herold Singh, learned
\nGovernment Advocate appearing for the respondents and have perused the records.\n<\/p>\n
\t12. Mr.R.S.Ramanathan, learned counsel appearing for the petitioners
\nsubmitted that in so far as their services were transferred to a Government
\nDepartment they are liable 40% of the fitment formula as provided under
\nG.O.Ms.No.162 dated 13.04.1998 and there is nothing in the said order to exclude
\nthe case of the petitioners. Learned counsel further submitted that other
\npersons who  went on Voluntary Retirement were allowed to go with full benefits
\nand their pay was fixed on the basis of the last drawn pay by taking into
\naccount the 40% for fitment purpose.  If that is allowed that will result in
\ndiscrimination against the petitioners.  Now, it is contended by the learned
\ncounsel for the petitioners that the pay granted by the committee on par with
\nother employees is violative of Articles 14 and 16 of the Constitution of India.\n<\/p>\n
\t13. Per Contra,  learned Government Advocate submitted that the very idea
\nof absorbing these petitioners to the Government Department was by a policy
\ndecision of the Government by the measure of social justice and the petitioners
\ncannot improve their status as if their services was of a continuous in
\nGovernment.  Learned counsel also submitted that the Government Order  in
\nG.O.Ms.No.162, Finance Department, dated 13.04.1998 will apply only to persons
\nin the Government service who had continuous services whereas in the petitioners
\ncase, the petitioners were squarely covered by G.O.Ms.No.91, Animal Husbandry
\nand Fisheries (TAPCO) Department, dated 06.06.2000.\n<\/p>\n
\t14. In fact, it is only pursuant to the directions of this court the case
\nof the 139 employees including the case of the petitioners were considered
\nsympathetically by the Government and their services were transferred.  The
\npetitioners are bound by the order of transfer and consequent absorption along
\nwith the conditions imposed there under.  In condition number iii as found in
\nparagraph 5 of G.O.Ms.No.91, Animal Husbandry and Fisheries (TAPCO) Department,
\ndated 06.06.2000, it was clearly stated that they will be considered as
\nGovernment Servant only from the dates of their joining in the Department and in
\ncondition No.9 it was clearly stated that the regularisation will be made only
\nfrom the date of joining in the Department of Animal Husbandry.\n<\/p>\n
\t15. When they are treated as fresh entrants to Government service they are
\nliable to fix their scale of pay on the basis of the scale available to the said
\npost and the question of extending the fitment formula does not arise. In fact,
\nthis Court in the earlier judgment filed by the TAPCO Employees Association
\ndated 23.02.2000 clearly directed to consider the case of absorption of the
\nemployees and did not grant any further relief to the petitioners.  The
\npetitioners have accepted their term of transfers and it is too late for them to
\ncontend as if they had come to the new department with all their services
\ncontinuity with consequential benefits.  The petitioners served their connection
\nin the TAPCO services after getting due terminal benefits and therefore they
\ncannot equate themselves with the Government servants who were already in
\nservice.  Once, if that position is made clear then the question as to how the
\npay of the erstwhile TAPCO employees has to be fixed can only be determined by
\nthe order of the Government.\n<\/p>\n
\t16. In fact, in the counter affidavit filed by the respondent\/Government
\ndated 12.02.2007 in paragraph 5  (W.P.No.10011 of 2006) the State had explained
\nas to how the scale of pay of the petitioners in that writ petition has been
\nfixed and the same is extracted below:\n<\/p>\n
\tThat the scale of pay of Junior Assistant is Rs.3200-85-4900 only.  Hence,
\nthe pay of the petitioner has to be fixed only as follows:-\n<\/p>\n
\t1. The pay of the petitioner drawn in TAPCO at the time of joining in the
\nDepartment(12.6.2000)
\n    a.Basic Pay\t\t             – Rs.1,500\/-\n<\/p>\n
    b.Personal Pay\t\t     - Rs.   63\/-\n    c.148% as Dearness allowance     - Rs.2,313\/-\n    d. First Interim Relief          - Rs.  100\/-\n    e. Second Interim Relief\t     - Rs.  150\/-\n\t\t\t\t\t----------\n\t\t\tTotal\t\tRs.4,126\/-\n\t\t\t\t\t----------\n\n   2. The Scale of pay of Junior\n   Assistant as per VI pay\n   commission\t\t\tRs.3200-85-4900\n\n<\/pre>\n
   3. Hence, the petitioner’s pay has to be fixed at Rs.4,135\/-.\n<\/p>\n
\t17. But, in the case of the said petitioner pay is fixed at scale as
\nRs.4600 by adding 40% of the pay last drawn and ignoring the fact that by
\nG.O.Ms.No.162 dated 13.04.1998 applied to employees who worked as on 01.01.1996,
\nwhereas the petitioner had entered into  Government service only on 12.06.2000.
\nIt was also brought to the notice of this Court by the Government Advocate that
\nthe petitioners were in receipt of the terminal benefits from the erstwhile
\nTAPCO for the services rendered by them.\n<\/p>\n
\t18. Learned Government Advocate submitted that the case of the petitioner
\ndoes not deserve any legal attention by this Court.  Subsequent to the issuance
\nof the Government Order in G.O.Ms.No.162, Finance(Pay Cell) Department, the
\nmatter had received the attention of the Government atleast on three occasions
\nwhere the Government had clearly stated that the erstwhile TAPCO Employees
\ncannot be fitted on par with other employees and the benefit of G.O.Ms.No.162
\ndoes not arise in their cases.  In fact, the order dated 28.11.2005 clarifying
\nthe said position is not even under challenge. Whereas, the subsequent further
\nclarifications given by the Government dated 25.10.2000 alone is under
\nchallenge.  In as much as it is an admitted fact that the erstwhile TAPCO
\nemployees whose services were transferred and placed at the disposal of the
\nGovernment were allowed to enter into the department only subsequent to the
\nofficial committee’s recommendation regarding adding 40% pay for fitment.\n<\/p>\n
\t19. Therefore, the writ petition on this ground is liable to be dismissed.
\nThe second contention that G.O.Ms.No.162, will apply along with tables appended
\nto the Government Order even to the petitioners is only stated to be rejected.
\nThe tables found in the Government Order by giving stage by stage fitment will
\napply only if the petitioners had the benefit of the said Government Order and
\nthe question of applying the tables to them does not arise.  In fact, in the
\nsaid Government Order itself it is stated that the new scale of pay is fixed
\nwith reference to the emoluments as on 01.01.1996 and it is not for persons like
\nthe petitioners. The officers of the Veterinary Department had fixed the scale
\nin respect of the petitioner (W.P.No.10011 of 2006)  and such fixation is due to
\nmisunderstanding and contrary to the Government direction issued in this regard.
\nTherefore, the said person cannot take advantage of such wrong fixation he is
\nlegally liable to refund the amounts paid in excess.\n<\/p>\n
\t20. Learned counsel for the petitioner contended that the petitioners case
\nmay be considered with reference to the persons who had gone on Voluntary
\nRetirement. In the case of voluntary retired persons who are employed by the
\nTAPCO their terms were determined by G.O.Ms.No.103, Animal Husbandry and
\nFisheries (Tapco) Department, wherein the said workman who went on voluntary
\nretirement scheme have been provided some extra amount for leaving the service
\npermanently.\n<\/p>\n
\t21. Further, Courts have always held that leaving the services under
\nvoluntary retirement scheme is to be determined on the basis of that scheme and
\nthat cannot be compared with the voluntary retirement in terms of the service
\nrules.  It was paid to such of workmen who were willing to leave service and
\nhence extra amount has to be paid.  Therefore, the fixation of pay in their case
\ncannot be compared to the persons who are continuing in service. As rightly
\ncontended by the learned Government Advocate the erstwhile TAPCO employees had
\ntheir terminal benefits received from the erstwhile Corporation and were
\nrelieved from service.  Therefore, the comparison with  persons who had left on
\nVoluntary Retirement Scheme cannot be appropriate.   Infact, the learned
\nGovernment Advocate also drew the attention of this Court with the previous
\norder granted in favour of the petitioner, wherein it is stated that their
\npayments are made in terms of Rule 10(a)(i) of the Tamilnadu State Subordinate
\nServices Rules and they will be considered as Government servants only from the
\ndate of appointment.\n<\/p>\n
\t22. Under such circumstances, there is no merits in the writ petitions and
\naccordingly, both the writ petitions are dismissed.  The stay granted in
\nW.P.No.10011 of 2007 will stand vacated. Consequently connected miscellaneous
\npetitions are closed.\n<\/p>\n
To<\/p>\n
1. The Secretary,
\n   State of Tamilnadu
\n   Animal Husbandary Dairying and
\n   Fisheries (Poultry) Department
\n   Fort St.George,
\n   Chennai – 600 009.\n<\/p>\n
2. The Commissioner and Director
\n   of Animal Husbandary and Veterinary
\n   Services Central Officer Building,
\n   Block-II, DMS Compound,
\n   Chennai 600 006.\n<\/p>\n
3. The Joint Director of Animal
\n   Husbandary, Additional incharge,
\n   Dr.Thangaraj Salai,
\n   Veterinary Hospital Campus,
\n   Madurai 625 020.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Pandi vs State Of Tamilnadu on 7 September, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-50740","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Pandi vs State Of Tamilnadu on 7 September, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-pandi-vs-state-of-tamilnadu-on-7-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Pandi vs State Of Tamilnadu on 7 September, 2007 - 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