Madras High Court
V.Shanmugam vs The State Of Tamil Nadu on 1 February, 2021
W.P.No.13025 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2021
CORAM
THE HON'BLE MR.JUSTICE R. SURESH KUMAR
Writ Petition No.13025 of 2007
V.Shanmugam ... Petitioner
-Vs-
1.The State of Tamil Nadu, rep.by its
Secretary to Government,
Environment and Forests Department
Fort St.George, Chennai 600 009.
2.The Managing Director,
Arasu Rubber Corporation Ltd.,
Vadassery, Nagercoil. ... Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for a
Writ of Certiorari to call for the records of the first respondent issued in Govt.
Lr.No.8700/FR 8/2006-2 Environment and Forests department dated 29/07/2006
and quash the same and consequently direct the respondents to fix the scale of pay
for the post of Lineman at Rs.610-1075 from 01/06/1988 and subsequent fixations
and to fix 5% personal pay from 01/08/1992 onwards.
For Petitioner : Mr.M.Ravi
For Respondents : Mr.S.Prabhu, Addl Government Pleader
ORDER
The prayer sought for herein is to to call for the records of the first
respondent issued in Govt. Lr.No.8700/FR 8/2006-2 Environment and Forests
department dated 29/07/2006 and quash the same and consequently direct the
respondents to fix the scale of pay for the post of Lineman at Rs.610-1075 from
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01/06/1988 and subsequent fixations and to fix 5% personal pay from 01/08/1992
onwards.
2. The short facts which are required for the disposal of the writ petition are
as follows:-
That the petitioner was appointed as Lineman in the second respondent
Arasu Rubber Corporation Limited (hereinafter referred to as the 'Corporation') on
27.05.1988 in the scale of pay of Rs.555-970. The Corporation has got its own
Service Rules and the same have been approved by the first respondent vide
G.O.Ms.No.46, Environment and Forests Department, dated 11.08.1988.
3. Since the petitioner was having the qualification as prescribed by the
Government to hold the post of Lineman and as per the Corporation's Rules, the pay
and allowances are to be fixed on par with the Government Servants fixed for the
same post in various Departments, especially in the context or import of
G.O.Ms.No.762 Finance (Pay Cell) Department dated 20.08.1986, the scale of pay of
all those who passed S.S.L.C., plus I.T.I Certificate was fixed at Rs.610-1070 for
ordinary grade and for selection grade it was fixed at Rs.705-1230 and as per
G.O.Ms.No.739, Finance (CMPC) Department dated 18.12.1996 for the post of
Lineman and Electrician the scale of pay was fixed as, for ordinary grade Rs.610
-1075 and for selection grade Rs.705 – 1230 and this Government Order has been
given effect to notionally from 01.10.1984 and with monetary benefits from
01.04.1986.
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4. With the aforesaid background, it is claimed by the petitioner that, since
he is having the qualification of S.S.L.C., plus I.T,I., and since it is the requisite
qualification for fixation of pay as has been envisaged in the aforesaid two
Government Orders, he sought for such re-fixation of pay.
5. The said plea made by the petitioner seems to have been placed before
the Board Meeting of the second respondent Corporation. However, it seems that,
though the Board was of the view that, the plea of the petitioner or like persons or
employees of the Corporation could be accepted, they wanted a clarification to that
effect from the Government probably because of G.O.Ms.No.762 dated 20.08.1986
and G.O.Ms.No.739 dated 18.12.1996, which is the basis under which the petitioner
/ employee seeks the benefit of re-fixation of pay, where the benefits conferred
under G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated 18.12.1996 to
various Government Servants is extended to various employees working under
Public Sector Undertakings such as the second respondent, is a question which was
to be clarified or answered by the Government. That probably might be was the
reason for referring the matter to seek clarification from the Government.
6. When that being the position, the Government by way of clarification
issued a third communication on 29.07.2006, wherein the Deputy Secretary to the
Government, Department of Environment and Forests (FR VIII), Secretariat,
Government of Tamil Nadu, Chennai 600 009 has passed the following order.
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“ I am directed to invite a reference to your letter cited, and to state
that the address issued in the G.O., first cited have not been
extended to any State Public Sector Undertakings. I am also to
point out that, there are variations between the Government
Departments and State Public Sector Undertakings in respect of the
duties and responsibilities and in the area of operation also.”
7. By thus, the plea raised by the petitioner for revision of scale of pay on par
with the Government employees by extending the benefits conferred under the
G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated 18.12.1996 referred to
above to the employees of the respondent Corporation has been turned down for
the reasons stated therein as quoted above. Aggrieved over the same, the
petitioner has filed the present writ petition, challenging the said order dated
29.07.2006.
8. Heard Mr.M.Ravi, learned counsel for the petitioner, who has straight away
taken this Court to the import of G.O.Ms.No.762 dated 20.08.1986 and
G.O.Ms.No.739 dated 18.12.1996. By relying upon the said two Government
Orders, the learned counsel would submit that, the pay benefits conferred by the
said Government Orders are extendable to all those employees who are working in
the second respondent Corporation. In support of his contention, he relied upon
Rule 34 under the Head – Pay and Allowances of the Arasu Rubber Corporation
Service Regulations / Rules. He would also submit that, a similar issue was raised
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W.P.No.13025 of 2007
by an employee of the very same second respondent Corporation, where, whether
the Rule 34 of the Service Regulations of the second respondent Corporation which
govern the service conditions of the petitioner and like employees, would govern
the issue and it will have an overriding effect was raised, and the said issue has
been extensively discussed by a learned Judge of this Court in a similar writ petition
in W.P.No.41316 of 2005 in the matter of “S.Karunanidhi -Vs- Government of
Tamil Nadu and another” wherein the second respondent was the very same
Arasu Rubber Corporation Limited, ie., the second respondent herein, where the
learned Judge of this Court, having considered the import of Rule 34 has held as
follows,
“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
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W.P.No.13025 of 2007
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
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W.P.No.13025 of 2007
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
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W.P.No.13025 of 2007
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.”
9. By relying upon the aforesaid judgment, where Rule 34 of the Service
Regulations of the Corporation also has been extracted, the learned counsel would
contend that, since Rule 34 has made it very clear that the pay and allowances with
all such allowances will be paid the Corporation Employees at the rates applicable to
the State Government employees from time to time. Since this Rule is very clear
and unambiguous, applying the very same Rule, whatever benefits conferred on the
Government Servants on par with the same the employees of the second
respondent Corporation also shall be entitled to get.
10. Therefore, the present decision which has been communicated through
the impugned order on behalf of the Government stating that, the benefits
conferred under G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated
18.12.1996 is not extendable to Public Sector Undertakings, is totally untenable and
unjustifiable, as it runs contra to Rule 34 of the Service Regulations. Therefore,
learned counsel for the petitioner contended that, on that ground itself the
impugned order is not sustainable and the consequential relief sought for in this writ
petition for a direction to the second respondent Corporation to extend the benefit
as sought for by the petitioner can be issued.
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W.P.No.13025 of 2007
11. Learned counsel for the petitioner also submitted that, insofar as the
second respondent Corporation is concerned, it is an independent entity as it is a
Corporation, where the highest policy making body is the Board, before which the
issue was placed and it is apparently not known as to whether the Board was
against the proposal of conferring the benefit of G.O.Ms.No.762 dated 20.08.1986
and G.O.Ms.No.739 dated 18.12.1996 to the employees and for what reason the
issue was referred to the Government, and based on which the Government has
issued the impugned clarification dated 29.07.2006, which is against the Rule as has
been quoted above. Therefore, the learned counsel would submit that, a direction
can be given to the second respondent Board to review the issue once again and
accordingly the benefits which have been conferred under G.O.Ms.No.762 dated
20.08.1986 and G.O.Ms.No.739 dated 18.12.1996 can very well be extended to the
petitioner and accordingly the pay benefits can be revised, he contended.
12. Per contra, the learned Additional Government Pleader appearing for the
respondents, by relying upon the averments made in the counter affidavit filed by
the second respondent, would submit that, in the 91st Board Meeting of the second
respondent Corporation dated 24.03.2006, the issue was placed where, after having
threadbare discussion, it was decided to refer the matter to the Government for
getting necessary clarification. In this context, the clarification has to be given only
by the Government because, the benefits conferred under G.O.Ms.No.762 dated
20.08.1986 and G.O.Ms.No.739 dated 18.12.1996 are only meant for Government
Servants and therefore, whether such benefits can be extended to employees of
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W.P.No.13025 of 2007
Public Sector Undertakings like the second respondent is an issue that has to be
discussed by the Government and accordingly the issue was raised to the
Government, where the Government, after having considered all the aspects, has
clarified the position stating that, the benefits conferred under the relevant
G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated 18.12.1996 cannot be
extended to the Public Sector Undertakings and therefore, based on such
clarification, the Board has decided not to extend the benefit of pay revision to the
employees of the second respondent Corporation and accordingly the plea raised by
the employees of the second respondent is rejected and therefore, the impugned
communication is fully sustainable and it does not require any interference from this
Court, he contended.
13. Learned Additional Government Pleader would also contend that, insofar
as the duties and responsibilities are concerned, there is variation between the
direct Government employees and the employees of the Public Sector Undertakings
and therefore, considering the rigorousness and other aspects of the duties and
responsibilities of the State Government employees, such kind of benefits have
been conferred on the State Government employees through the referred
Government Orders. Therefore such a benefit on par with the State Government
employees cannot be expected to be extended to the employees of the Public
Sector Undertakings, where the onerous of the duties and responsibilities are less.
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W.P.No.13025 of 2007
14. I have considered the submissions made by the learned counsel
appearing for the petitioner and the learned Additional Government Pleader
appearing for the respondents and also perused the materials placed on record.
15. Now the issue raised in this writ petition is in a very narrow compass as
to whether the petitioner being the employee of the second respondent Corporation
is entitled to get the benefits that have been conferred to the Government Servants
under G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated 18.12.1996.
16. In this context, it is not in dispute that under G.O.Ms.No.762 dated
20.08.1986, the scale of pay for various categories have been fixed and in this
regard it is to be noted that the scale of pay for those who passed S.S.L.C., plus
I.T.I., was fixed at at Rs.610-1070 for ordinary grade and for selection grade it was
fixed at Rs.705-1230. Like wise, under G.O.Ms.No.739 dated 18.12.1996, for the
post of Lineman and Electrician the scale of pay was fixed as, for ordinary grade
Rs.610 -1075 and for selection grade Rs.705 – 1230 and these Government Order
has been given effect to notionally from 01.10.1984 and with monetary benefits
from 01.04.1986.
17. Therefore, the benefits conferred to the Government employees under
the aforesaid Government Orders, are not in dispute. Now the only question is
whether the benefits conferred to the Government employees would be extendable
to the employees of the Public Sector Undertakings.
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18. In this context, it is to be noted that, the service conditions of the
employees of the second respondent Corporation are governed by the Service
Regulations called Arasu Rubber Corporation Limited Service Rules.
19. Under the said Rules, Rule 34 speaks about the pay and allowances,
which reads thus,
"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."
20. In view of the language used in Rule 34 of the Service Rules quoted
above, learned counsel for the petitioner vehemently contended that, the petitioner
who is an employee of the second respondent Corporation certainly would be
entitled to get the pay benefits on par with the Government employees in view of
the aforesaid Rule.
21. In this context, the learned Additional Government Pleader appearing for
the respondents would submit that, unless and until the benefits conferred to the
Government employees in the Government Orders referred to above ie.,
G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated 18.12.1996 is extended
to various Public Sector Undertakings, it cannot be sought for as a matter of right by
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W.P.No.13025 of 2007
any employee of the Public Sector Undertakings like the second respondent and
seek such benefits on par with the Government employees.
22. The said argument made on behalf of the learned Additional Government
Pleader is not appealing to this Court for the following reason.
23. First of all, G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated
18.12.1996 are issued under the executive power of the Government under Article
162 of the Constitution of India.
24. Wherever there is no legislature, under which the State Legislature
legislate the Law, when there is an area of vacuum, where immediate legislations
could not be brought in, the Government, by exercising the executive power under
the said Article 162 of the Constitution of India, can issue Government Orders from
time to time. No doubt, if such Government Order is issued under the Executive
Power of the State, it will have the same effect as that of a legislation competently
made by the State Legislature in the particular field.
25. Here in the case on hand, G.O.Ms.No.762 dated 20.08.1986 and
G.O.Ms.No.739 dated 18.12.1996 are issued invoking the executive power of the
Government. While issuing the said Government Orders, though the benefits
conferred therein are conferred only to the Government employees, there is no
whisper in the said Government Orders to state that, the benefits conferred under
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W.P.No.13025 of 2007
the particular Government Orders shall not be extended to the employees of Public
Sector Undertakings functioning in the State. However, in the Service Regulations
governing the employees of the second respondent Corporation especially Rule 34
has made it clear that, the pay and allowances will be paid to the employees of the
Corporation at the rates applicable to the State Government employees from time to
time.
26. If we put the Rule 34 of the Service Regulations as well as
G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated 18.12.1996 in
juxtaposition, this Court feels that, unless and until the State Government thought
to issue the Government Orders by incorporating the non-obstante clause in the
said Government Orders stating that, notwithstanding anything contained in other
Service Regulations in any Public Sector Undertakings, the pay benefits conferred
under the Government Orders shall not be extended to the employees of the Public
Sector Undertakings, the benefits under the said Government Orders certainly will
be applicable to such Public Sector Undertakings also.
27. No such exclusion has been explicitly made under the aforesaid
Government Orders and therefore unless and until such an explicit exclusion is
made in the Government Orders ie., G.O.Ms.No.762 dated 20.08.1986 and
G.O.Ms.No.739 dated 18.12.1996, this Court is of the considered opinion that, Rule
34 of the Service Regulations which is governing the service conditions of the
employees of the second respondent Corporation would certainly prevail over. In
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that case, in order to have a harmonious construction with the benefits conferred
under the Government Orders as well as the Rules of the Service Regulations of the
employees to claim the benefits conferred under the Government Orders to get on
par with the Government employees, as contemplated under Rule 34, the same
shall be given effect and therefore, insofar as the interpretation now sought to be
given through the impugned order of the first respondent stating that, the benefits
conferred under G.O.Ms.No.762 dated 20.08.1986 and G.O.Ms.No.739 dated
18.12.1996 is not extendable to any Public Sector Undertaking is concerned, such
kind of interpretation is not available to the State Government as the same cannot
be culled out from the language used in G.O.Ms.No.762 dated 20.08.1986 and
G.O.Ms.No.739 dated 18.12.1996.
28. Therefore, this Court feels that, in view of Rule 34 of the Service
Regulations, certainly the employees of the second respondent Corporation would
be entitled to get the pay and allowances on par with the State Government
employees from time to time. This in fact has been considered by the learned
Judge in the aforesaid judgment cited supra, where the very same Rule 34 has been
quoted and accordingly the plea raised by the petitioner therein was accepted by
the learned Judge and the writ petition was allowed. I am in respectful agreement
with the view taken by the learned Judge in the aforesaid judgment, as in that case,
the very same Government as well as the second respondent were the party
respondents. Therefore, assuming that the judgment is between the parties, that
will bind on the respondents herein especially the State Government, Environment
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and Forests Department as well as the second respondent Arasu Rubber
Corporation Limited.
29. Therefore, for all the reasons stated above, this Court feels that, the
present decision conveyed by the impugned order herein stating that, the benefits
conferred under the relevant Government Orders are not extendable to the
employees of the Public Sector Undertakings including the second respondent
Corporation is totally untenable and unjustifiable. Therefore, the impugned order is
liable to be quashed and it is accordingly quashed.
30. In the result, this writ petition is ordered with a direction also to the
second respondent Corporation to take the plea raised by the petitioner for revision
of pay and other benefits and accordingly pass necessary orders for extending such
pay benefits to the petitioner within a period of two months from the date of receipt
of a copy of this order. Needless to mention that once such revised pay is ordered
in favour of the petitioner, the arrears payable to him shall also be calculated and
paid to him within a time frame. Accordingly, this writ petition is disposed of. No
costs.
01.02.2021
Index : Yes
Internet : Yes
KST
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W.P.No.13025 of 2007
To
1.The Secretary to Government,
Environment and Forests Department
Fort St.George, Chennai 600 009.
2.The Managing Director,
Arasu Rubber Corporation Ltd.,
Vadassery, Nagercoil.
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W.P.No.13025 of 2007
R. SURESH KUMAR, J.
KST
W.P.No.13025 of 2007
01.02.2021
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