Madras High Court

V.Duraimanickam vs The Secretary To Government on 29 June, 2021

                                                              W.A.No.102/2020

            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                          DATED : 29.06.2021

                                 CORAM

     THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
                            AND
        THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

                          W.A.No.102 of 2020

1. V.Duraimanickam
2. C.R.Subramaniam
3. V.Purushothaman
4. S.A.Natarajan
5. M.Sivam
   Mani (died)
6. M.Govindasamy
7. K.Subramani
8. T.Udaiyar
9. A.K.Ramanujam
10.R.Kuppusamy
11.A.V.Sengali
12.K.Manivannan
13.S.Subramani
14.E.Bhakthan
15.V.Neethirajan
16.R.Manesh
   V.Janakiraman (died)
   M.Ezhumalai (died)
   A.Ganesan (died)
17.T.Mahendran
   A.Kalathi (died)
18.D.David Raja
19.P.Lakshmanan
   M.Ansari (died)
20.A.Bakkiyanathan
   N.Sabapathi (died)
21.M.Rajammal
22.M.Ayyadurai                           .. Appellants/Petitioners

                                  Vs.

1. The Secretary to Government
Page 1/10
                                                               W.A.No.102/2020

  Housing and Urban Development Board,
  Fort St. George,
  Chennai-600 009.

2. The Secretary and Personnel Officer,
   Tamil Nadu Housing Board,
  Anna Salai, Nandanam,
  Chennai-600 035.                      .. Respondents/Respondents
                                 ***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 29.10.2018 in W.P.No.3456 of 2015.
                                   ***
            For Appellants    :     Ms.S.T.P.Kuilmozhi

            For Respondents :       Mr.R.Neelakantan,
                                    Government Advocate for R1

                                    Ms.R.Gowri for R2


                             JUDGEMENT

Pushpa Sathyanarayana, J.

This intra-Court appeal is preferred by the unsuccessful petitioners

laying challenge to the order of the writ Court dated 29.10.2018 made in

W.P.No.3456 of 2015.

2. The writ petitioners sought to quash the order of the second

respondent dated 29.10.2014 made in Letter No.P.T.5/5810/2013, while

seeking a further direction to the respondents to revise their basic pay in

terms of G.O.Ms.No.304, Finance (Pay Commission) Department, dated

28.03.1990 with all subsequent revisions on par with Assistants, Wiring

Inspectors, Building Inspectors, Time Keepers of the Housing Board. Page 2/10 W.A.No.102/2020

3. According to the petitioners, they all joined the Cellular

Concrete Plant (in short, CCP) of the Housing Board between 1971 and

1972 in non-technical and technical posts. Their services were

regularized on 11.11.1974 on par with the other regular employees.

Since the CCP was closed, the petitioners and other employees were

transferred to various other divisions of the Housing Board. Till IV Pay

Commission, they were paid on par with the regular employees of the

Board, but while implementing V Pay Commission during 1988 and the

subsequent Pay Commission, the revision was lesser than that of the

regular employees, culminating into less pay and also pension and other

terminal benefits. Seeking pay parity and subsequent revision, the

petitioners submitted a representation to the Housing Board on

18.02.2013, which was negatived vide the order impugned in the writ

petition on 29.10.2014. Thus, they were before the Writ Court and now

before this Court.

4. The writ petition was resisted by the respondents stating that

the employees of the CCP were governed by the Factories Act, 1948 and

not the Service Rules of the Housing Board and the alleged pay parity

was a coincident. It was contended that in V Pay Commission, for one

existing scale pay, more than one revision was given and accordingly,

based on the duties and responsibilities attached to each of the posts, Page 3/10 W.A.No.102/2020

the pay fixation was adopted by the Board and consequential selection

grade and special grade pay were also given and there is no error in

fixation of the pay.

5. The writ petitioners, however, combated the above

contentions stating that the beneficial provisions of the Factories Act

were not extended to them in letter and spirit, and but for the

intervention of this Court, they would not have been given the pension

benefits. The fact that the pay of the petitioners and other employees

has been revised, based on the Pay Commission and not in terms of

factory laws itself would go to show that they are not governed by the

Factories Act, but the service rules of the Housing Board, which in turn,

adopted the rules of the State Government. Thus, it was contended that

the classification adopted by the Board for pay benefits was wrong and

the order impugned is liable to be set aside and they are entitled for

consequential pay, pension and other terminal benefits.

6. The writ court, upon appreciation of the contentions made on

either side, dismissed the writ petition on two counts, namely, (i) delay

and laches ; and (ii) non-application of equal pay for equal work.

7. Heard the learned counsel for the appellants and learned

Government Advocate for the first respondent and the learned Standing Page 4/10 W.A.No.102/2020

Counsel for the second respondent and perused the materials placed

before us.

8. Admittedly, the writ petitioners/appellants and other

employees entered into the service of CCP between 1971 and 1972 and

their services were regularized during 1974. The V Pay Commission was

implemented during 1988. All these petitioners retired from service long

back. Though it is claimed by the writ petitioners that they made

representations to the second respondent seeking parity in pay with the

Assistants, Wiring Inspectors, Building Inspectors, Time Keepers of the

Housing Board, no piece of paper is produced either before the Writ

Court or before us to substantiate such claim. The only representation

made by the writ petitioners dated back to 18.02.2013, which was

negatived by the impugned order. It is well-settled principle that the

employee, who claims equity must enforce his claim within a reasonable

time. Thus, the inordinate delay on the part of the writ petitioners deny

them the benefits now they are claiming, even assuming that they are

similarly situated to the other employees who obtain those benefits, by

virtue of the judgments of the Court.

9. It is appropriate to rely upon the following judgments in this

regard :

Page 5/10 W.A.No.102/2020

9.1. The Hon'ble Supreme Court in Govt. of W.B. v. Tarun K.

Roy (2004) 1 SCC 347, wherein opined as follows :

“34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v.

Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.”

9.2. In NDMC v. Pan Singh, (2007) 9 SCC 278, while dealing

with a similar issue, which came up for consideration, it has been

observed by the Hon'ble Supreme Court that,

“16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as Page 6/10 W.A.No.102/2020

parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut- off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.”

9.3. The said principle was reiterated by the Hon'ble Supreme

Court in S.S. Balu v. State of Kerala, (2009) 2 SCC 479, in the

following terms:

“17. It is also well-settled principle of law that ‘delay defeats equity’. The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage.”

9.4. The Hon'ble Supreme Court in Ghulam Rasool Lone v.

State of J&K, (2009) 15 SCC 321, observed as follows :

"19. It is beyond any cavil of doubt that the remedy under

Page 7/10 W.A.No.102/2020

Article 226 of the Constitution of India is a discretionary one. For sufficient or cogent reasons a court may in a given case refuse to exercise its jurisdiction; delay and laches being one of them. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof."

9.5. We are of the view that it is incumbent on this Court to apply

the above principle to the case on hand, which has been rightly done by

the learned Single Judge.

10. It is contended by the learned counsel for the writ

petitioners/appellants, placing reliance on the order of this Court dated

23.10.2007 made in W.P.Nos.10120 of 2002 and 21886 of 2003

[Workmen of Tamil Nadu Housing Board (Cellular Concrete Plant) rep. by

Thakkaikal Thozhilalar Munnetra Sangam rep. by its General Secretary V.

Government of Tamil Nadu], as affirmed in W.A.No.394 and 395 of 2008

on 28.04.2008, that the Housing Board is duty bound to confer the

benefits of pay to the writ petitioners/appellants on par with Assistants

and other establishment staff of the Housing Board, as prayed. We are