Madras High Court
M.Usharani vs The Secretary To Government on 22 July, 2021
W.P.(MD) No.13996 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.07.2021
CORAM
THE HON'BLE MR.JUSTICE T. S. SIVAGNANAM
and
THE HON'BLE MRS.JUSTICE S.ANANTHI
W.P.(MD)No.13996 of 2013
and
M.P.(MD)No.3 of 2013
1. M.Usharani
2. P.Lakshmi
3. M.Dhanabalan
4. Krishnaveni
5. S.Valarmathi
6. N.Kalaiselvi
7. P.Bhuvaneswari
8. S.Chellapandian
9. N.Hakkim
10. S.Murugesan
11. T.Kannan
12. S.Palanikumar
13.P.Chandra ... Petitioners
-Vs-
1.The Secretary to Government,
Home (Courts-V) Department,
Secretariate, Chennai – 9.
https://www.mhc.tn.gov.in/judis/
1/14
W.P.(MD) No.13996 of 2013
2. The Registrar General,
High Court, Chennai.
3. The District Judge,
Sivagangai, Sivagangai District. ...Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, calling for the
records connected with the impugned order passed by the 1st Respondent
in Letter No. 57791/Cts. V/2010- 10 dated 31.07.2012 which was
received on 29.07.2013 and quash the same and consequently direct the
1st Respondent to merge the posts of Readers/Examiners with that of
Junior Assistants based on the proposal forwarded by the 2nd Respondent
dated 20.07.2010 on the anology of merger of posts of copyists with that
of typist in terms of G.O. Ms.No. 1006 dated 03.07.2007 with effect from
03.07.2007 .
For Petitioners : Mr.S.Govindan
For R-1 : Mr.A.K.Manikkam
Standing Counsel for Government
For R-2 & R-3 : Mr.K.Samidurai
ORDER
[Order of the Court was made by T. S. SIVAGNANAM, J.,]
This writ petition has been filed by thirteen (13) writ petitioners,
who are working as Examiners and one of them as Reader in various
Courts in Sivagangai District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
2. The prayer sought for in the writ petition is to quash the
communication sent by the first respondent in Government Letter
No.57791/Cts.V/2010-10 dated 31.07.2012, in and by which the first
respondent rejected the proposal sent by the High Court for merger of the
posts of Examiners/Readers with that of Junior Assistants as not feasible.
3. The Thirteenth writ petitioner is one P.Chandra, who has
already a Junior Assistant then working in District Munsif cum Judicial
Magistrate Court, Ilayankudi. Since the grievance expressed by the
twelve other writ petitioners is not identical with that of the thirteenth
petitioner, she is deleted from the array of parties.
4. The petitioners 1 to 12 were originally appointed as
Readers/Examiners on various dates from 1996 and were granted
selection Grade on completion of ten years of service and continued to
work in same post, without further promotion as Assistants and
Superintendents like similarly placed Junior Assistants in other
departments.
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
5. The Petitioners 1 to 12 would state that both posts of
Readers/Examiners and Junior Assistants carry the same scale of pay, the
work performed are identical and there cannot be any discrimination
among the Readers/Examiners and Junior Assistants. Further, by placing
reliance on the decision of this Court in the case of Tvl.Y.Immanuvel
and 32 others vs. Government of Tamil Nadu represented by the
Commissioner and Secretary to Government, Home (Services – I)
Department and others [1996 Writ L.R. 180], it is submitted that
extending the benefits of pay scale of Junior Assistants to Readers and
Examiners had to be complied with and merely because the Junior
Assistants are recruited by the Tamil Nadu Public Service Commission
[hereinafter referred to as “TNPSC” for short], while Readers/Examiners
are not recruited through TNPSC, it cannot constitute a justification for
discrimination against the Readers/Examiners. It is submitted that the
said decision in the case of Y.Immanuvel supra was implemented by the
Government by issuing the G.O.Ms.No.1193, Home (Courts V)
Department, dated 07.08.1995 extending the benefit of revision of pay on
par with that of the Junior Assistants with effect from 01.06.1988.
Therefore, the petitioners 1 to 12 would state that for all purpose,
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
Readers/Examiners should be treated as equivalent to that of Junior
Assistants and the posts have to be merged with Junior Assistants.
6. The petitioners 1 to 12 would further state that another category
of post which carries the identical scale of pay and similar nature of
duties and responsibilities is the post of Copyists. The Association of
Judicial copyists filed W.P.No.15467 of 1995 and W.P.No.18071 of
1996 for revision of scale of pay of Copyists from
Rs.825-15-900-20-1200 to Rs.975-25-1150-30-1660 on par with the
scale pay of Typists with effect from 01.06.1988. The said writ petitions
were ordered and the Government, by G.O.Ms.No.774, Home (Courts V)
Department, dated 02.06.1994 implemented the order by revising the
scale pay of Copyists with that of Typist, with effect from 01.06.1988
and made it applicable only to those Copyists, who had passed higher
grade typing in English and Tamil. Subsequently, by G.O.Ms.1006,
Home (Courts V) Department, dated 03.07.2007, the post of Copyist was
merged with the post of Typist in the Tamil Nadu Judicial Ministerial
Service. The (1 to 12) petitioners' grievance is that the Copyists who
were far juniors than the petitioners were promoted as Assistants on
account of merger by G.O.Ms. 1006, Home (Courts V) Department,
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
dated 03.07.2007, whereas the petitioners who were similarly placed
were not considered for further promotion as Assistants as they were not
merged with the post of Junior Assistants, though they were having
identical scale of pay. The petitioners 1 to 12 further state that one
K.A.Baskaran, who was a Reader/Examiner filed a writ petition before
this Court in W.P.(MD)No.5969 of 2008 for merger of the post of
Examiners/Readers in the Category 6 - Class IV with that of Junior
Assistants in Category 5 - Class IV for the consideration of promotion to
the post of Assistants in Category 4 - Class IV of Tamil Nadu Judicial
Ministerial Service. The writ petition was disposed of by the Hon'ble
Division Bench of this Court, by order dated 28.04.2009, directing the
said petitioner to move before the administrative side of the High Court.
Accordingly, the said petitioner, K.A.Baskaran submitted a
representation expressing the grievance of the Readers/Examiners vide a
representation dated 10.07.2009. The said representation was received
by the High Court and the second respondent/Registrar General of the
High Court sent a proposal dated 20.07.2010 to the first respondent by
forwarding the representation of K.A.Baskaran, wherein he sought for
merger of the post of Reader/Examiner with that of Junior Assistants on
the same lines that of the merger of the post of the Copyists with that of
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
Typists. The first respondent instead of accepting the proposal submitted
by the High Court has returned the proposal as not feasible of
consideration. This communication dated 31.07.2012 is impugned in this
writ petition.
7. Two reasons have been assigned in the impugned
communication. Firstly, there is a difference in scale of pay. The second
reason assigned is the source of recruitment is not identical, in the sense
Junior Assistants have been recruited through TNPSC, whereas the
Reader/Examiner are not recruited through TNPSC. Sofar as the first
ground regarding disparity in the scale of pay is concerned, the same is
no longer an issue, in the light of the stand taken by the counter affidavit
filed on behalf of the respondent dated 03.11.2017. The relevant portion
of the counter reads as follows:
.....Accordingly, Government issued
orders in G.O.(Ms)No.956, Home (Cts.V)
Department, dated 08.11.2013, directing the
scales of pay of certain category of posts in the
High Court Service / Tamil Nadu Judicial
Ministerial Service shall be revised including
the post of Copyist / Reader / Examiner as
below:-
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
Sl.No. Name of the Post Existing Scale of Recommendations
Pay + Grade Pay of the Pay
Grievance
Redressal Cell
** ***** ***** *****
2. Copyist, Examiner and Rs.5200-20200 + Rs.5200-20200 +
Reader, Senior Balliff 2400 2400
(Judicial Ministerial Service) Notional effect
Madras High Court, Madurai from 01.01.2006
Bench. and Monetary
benefit w.e.f.
01.04.2013
** ***** ***** *****
7. It is submitted that as per the orders
issued by the Government in the G.O.
Mentioned above, the scale of pay of Typist,
Copyist, Reader, Examiner and Junior
Assistant have been fixed at Rs.
5200-20200+2400 notionally from 01.01.2006
with monetary benefit from 01.04.2013.”
8. In the light of the order passed by the Government in
G.O.Ms.No.956, Home (Courts-V) Department, dated 08.11.2013, one of
the reasons assigned by the first respondent for rejecting the proposal of
the High Court does not survive any longer and therefore, to that extent,
the same has to be quashed and accordingly quashed.
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
9. The second aspect is whether merely because the recruitment is
through two sources, can it be a ground to deny the relief sought for by
the petitioners as that of similarly placed persons? This issue was raised
by the Government, when the Reader/Examiner claiming identical scale
of pay on par with the Junior Assistants. The Government rejected such
request solely on the ground that the Junior Assistants are recruited
through TNPSC and Readers/Examiners are not recruited through
TNPSC. This was put to challenge and in the decision in the case of
Y.Immanuvel supra, it was held that the stand taken by the Government
amounts to discrimination and not justifiable. The operative portion of
the judgment reads as follows:
“18. As the anomaly as between the Junior
Assistants and the petitioners in their scale of pay
in the Selection Grade was brought about from the
date on which the Fifth Pay Commission made its
recommendations which were accepted and
implemented by the Government, the petitioners
are entitled to the benefit of such revised scales of
pay with effect from the date on which such
benefits were accorded to the category of Junior
Assistants in the Courts. The scale of Pay of the
Drivers and Constables Grade I, which was the
same as that of the Readers/Examiners at the entry
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
point having been revised by the Fifth Pay
Commission to the level equal to that of the Junior
Assistant, it is but just to fix the scale of pay of
Readers/Examiners who are not in the Selection
Grade on part with that of Junior Assistants who
are not in the Selection Grade, with effect from the
date on which the Fifth Pay Commission
recommendations were implemented in respect of
Junior Assistants.”
10. The observations/findings contained in the above decision will
squarely apply to the case on hand as well. The only distinction being
the petitioners 1 to 12 seek for merger, for which proposal was forwarded
by the Registrar General of the High Court to the Government and
rejected solely on the ground that source of recruitment is not through
TNPSC. The representation given by K.A.Baskaran who was the
petitioner in W.P.(MD)No.5969 of 2008, who was similarly placed
person as that of the petitioners 1 to 12 herein was forwarded to the
Government by not a simple proposal, but the High Court had recorded
its views and pointed out as to how it could be discrimination. The
relevant portion of the proposal of the High Court is as follows:
“The discrimination / anomalous situation had
cropped up after the merger of the posts of Copyist
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
with that of Typist that there are posts carrying
identical scale of pay and are having eligibility; for
promotion ahead of / along with those working in the
posts of Copyists in Class V to the post fall under the
category 5 of Class IV as per the provisions of extant
rules. However, it is the State Government/ the rule
framing authority, to set right the position by issuance
of clarifications/fresh orders of merger, considering
those posts for which the scale of pay/educational
qualification/nature of work are already identical and
are in existence in the Tamil Nadu Judicial
Ministerial Service.”
11. Thus, the proposal which emanated from the Registrar General
sought for necessary orders of the Government. The question would be
whether the Government can sit on appeal over such a decision or refuse
to accept the proposal of the High Court. This issue is no longer res-
integra as the recommendations of the Chief Justice of the High Court
are to be given due diligence and atmost consideration by the State
Government. The Article 229 of the Constitution of India vests in the
High Court control over its staff in order to free the Court from any
interference from the Government in relation to the administration of the
Court. The nature of the work performed by the officials in the Court is
best known to the Court and not to the Government and when a
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
recommendation is made by the Hon'ble Chief Justice to the effect that
the work performed by the Readers/Examiners employed in Court is
similar to that of the Junior Assistants in the Court, and the scale of pay
of the two posts should be identical, it is not permissible for the
Government to disregard the recommendation and persist in holding a
contrary view (Y.Immanuvel's case). Therefore, the impugned
communication sent by the first respondent is clearly without
jurisdiction. Identical reason was tested for its correctness in the case of
Y.Immanuvel supra and it was held that it is discriminatory and such
decision was implemented by the Government and pay scales were also
revised. Therefore, the order impugned calls for interference.
12. Accordingly, this writ petition is allowed and the impugned
order is quashed and the first respondent is directed to pass appropriate
orders by merging the posts of Readers/Examiners with that of the post
of Junior Assistants and effect necessary amendment to the Rules, within
a period of six months from the date of receipt of a copy of this order.
13. One issue which will arise for consideration is whether from
what date such merger should take place. The writ petition was filed in
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
the year 2013 and obviously by now, the twelve writ petitioners might
have been promoted. If any order is passed by this Court directing
retrospective implementation of the merger, then it will result in a
cascading effect as and may impact the promotions which have been
granted to other persons, who were initially appointed as Copyists and
thereafter, merged with Typists. Therefore, in order to avoid any
anomalous situation to arise, we direct that the merger shall be done
perspectively, from the date on which the Government notifies.
[T.S.S. J.,] [S.A.I. J.,]
22.07.2021
Index : Yes/No
Internet : Yes
sm/ksa
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
The Secretary to Government,
Home (Courts-V) Department,
Secretariate, Chennai – 9.
https://www.mhc.tn.gov.in/judis/
W.P.(MD) No.13996 of 2013
T. S. SIVAGNANAM, J.,
and
S.ANANTHI, J.,
sm/ksa
Order made in
W.P.(MD)No.13996 of 2013
22.07.2021
https://www.mhc.tn.gov.in/judis/
