Madras High Court
Julius Jawahar Devakandan vs The Government Of Tamil Nadu on 22 April, 2025
W.P.(MD)No.7019 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.04.2025
CORAM
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
W.P.(MD)No.7019 of 2019
and
W.M.P.(MD)No.5601 of 2019
Julius Jawahar Devakandan ... Petitioner
Vs.
1.The Government of Tamil Nadu
Rep by its Secretary,
Department of Highways and Minor Ports,
Fort St George, Chennai-600001.
2.The Director General,
Highways Department,
Guindy, Chennai-5.
3.The Director,
Highways Research Station,
Highways Department,
Guindy, Chennai.
4.The Divisional Engineer,
Highways,
Quality Control Division,
Madurai-625002.
5.The Superintending Engineer,
(Highways), Madurai ... Respondents
(R5 is impleaded vide Court order dated 25.02.2025 in WMP.(MD)No.
3771 of 2025 in WP.(MD)No.7019 of 2019)
1/11
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W.P.(MD)No.7019 of 2019
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to quash the impugned
order passed by the first respondent in G.O.(Ms)No.5, Highways and
Minor Ports (H.M.2) Department dated 13.01.2011 in respect of
petitioner's pay fixation is concerned and quash the same as illegal and
consequently, direct the respondents to refix the petitioner's Pay Band as
Rs.4300-100+6000 w.e.f. 30.09.2003 by protecting the pay last drawn by
the petitioner and disburse the difference amount in pay to him w.e.f.
30.09.2003 within the time stipulated by this Court.
For Petitioner : Mr.J.Lawrance
For Respondents : Mr.G.V.Vairam Santhosh,
Additional Government Pleader.
ORDER
Under challenge is G.O.(Ms)No.5, Highways and Minor Ports
(H.M.2) Department dated 13.01.2011 in respect of petitioner's pay
fixation is concerned and consequently, direct the respondents to refix
the petitioner's pay by protecting the pay last drawn by the petitioner.
2.The case of the petitioner is that he was appointed as Welder
Grade-I in the Central Workshop (Mechanical Wing), on 28.03.1990. He
was regularized with effect from 28.03.1990. He was conferred with
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selection grade on 28.03.2000. The first respondent issued a
Government Order for abolition of mechanical wing with effect from
31.08.2003. In view of the same, he was appointed as Record Clerk with
effect from 30.09.2003 in the office of the fifth respondent. He was
drawing a sum of Rs.5,000/- as basic pay in the scale of pay of
Rs.4300-100-6000. Upon recommendation of the fifth respondent, the
first respondent vide G.O.(Ms)No.5, dated 13.01.2011, has ordered pay
protection. However, contrary to such pay protection, the petitioner's pay
was erroneously fixed at Rs.4590+410 applicable to the Special Grade
Record Clerk without considering the last drawn pay. The petitioner's
pay scale was splitted up and fixed as Rs.4590+410. The petitioner's pay
was not protected and he was made to receive lessor pay than that of his
pre-revised pay. The pay fixation is contrary to the Rule 22 (2)(7) and
contrary to the Tamil Nadu Revised Scales of Pay, Rules, 2009. Hence,
the writ petition.
3.The learned counsel appearing for the petitioner would submit
that the respondents have splitted up the petitioner's last drawn pay of
Rs.5000/- into Rs.4590/- as basic pay and remaining amount of Rs.410/-
as personal pay. In view of the split up of pay structure, the petitioner
started drawing lower pay prior to his re-deployment, since the
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petitioner's case was treated as Special Case and Rules have been relaxed
for pay protection, vide G.O.(Ms)No.5, dated 13.01.2011. He would
submit that as per sixth pay commission benefit, the petitioner was
permitted to draw increments and pay commission benefits only on the
basis of the alleged basic pay of Rs.4590/- and personal pay Rs.410/- was
left out. The fixation made by the respondents is contrary to the Rule 22
(2)(7) and contrary to the Tamil Nadu Revised Scales of Pay, Rules,
2009. To strengthen his contention, he has relied upon the judgment of
the Hon'ble Supreme Court reported in 2018 14 SCC 435 in Eastern
Coalfields Limited and Ors. Vs. Prativa Biswas and Ors to show that
the pay of employees could not have been reduced as pay protection was
assured to them. He would submit that in case of consequential relief
like arrears for the past period cannot be rejected on the ground of delay
and latches. To strengthen his contention, he relied upon the judgement
of the Hon'ble Supreme Court reported in (2008) 8 SCC 648 in Union of
India and Ors. Vs. Tarsem Singh to show that where a service related
claim is based on a continuing wrong, relief can be granted even if there
is a long delay in seeking remedy. He would submit that though the
order impugned came to be passed in the year 2011, the petitioner is not
in a position to challenge the said order immediately, due to his family
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situation and he was not well and he was suffering from Tuberculosis.
He would submit that the delay in approaching this Court neither wilfull
nor wanton.
4.Per contra, the learned Additional Government Pleader
appearing for the respondents would submit that the petitioner was
working as Welder Grade I in the workshop. At the time of re-
deployment to the post equivalent to his cadre and with reference to his
qualification was not available. However, considering the plight of the
petitioner, the Government had taken a sympathetic view and considered
him for appointment in a lower grade post of Record Clerk to his
educational qualification, instead of retrenching him from service. He
would submit that present writ petition came to be filed to fix his pay in
the scale of pay applicable to his original post. He would submit that in a
similar batch of cases W.P.Nos.17445 & 17446 of 2008, this Court vide
order dated 02.11.2018 was pleased to dismiss the writ petitions stating
that this Court is not inclined to interfere with the orders passed by the
respondents therein. He would submit that the prayer in the above writ
petitions to refix the pay at 4000-100-6000 and 4300-100-6000
respectively, which they were seeking prior to re-deployment cannot be
granted.
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5.This Court has considered the submissions made on either side
and perused the available records.
6.It is seen from the typed-set of papers that the petitioner was
appointed Welder Grade I in the Mechanical Wing of Highways
Department on 28.03.1990. After completing 10 years of service, he got
selection grade to the said post on 28.03.2000. As per Government letter
dated 22.08.2003, the mechanical wing in which the petitioner was in
duty was disbanded and the employees were surrendered to the Chief
Engineer (General), Chennai. At that time, the petitioner got a pay of
Rs.5,000/- in a scale of pay Rs.4300-100-6000.
7.It is seen from the records that at the time of closure of
mechanical wing, the petitioner was received basic pay of Rs.5,000/-. In
the selection grade Record Clerk, the highest basic pay is Rs.4590/- only.
The difference in pay Rs.410/- was given under personal pay, so that the
total basic pay of Rs.5000/- received by the petitioner was maintained
without any reduction.
8.As per Government letter No.5/Highways and Minor ports/HM 2
dated 18.01.2011, rules relating to the personal pay was relaxed and
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Welder Grade I is reappointed as Special grade clerk to give pay
protection from the year 2003-2006 he got routine annual increment. As
per G.O.(Ms)No.234, Pay and Finance Commission, on 01.06.2009,
5200-20200+1900 pay band is fixed as Rs.10140+1900 vide proceedings
dated 27.06.2011 and given from 01.01.2006. In 2013, the petitioner got
promotion from special grade Record Clerk to Record Assistant and was
given additional pay of Rs.500/-. The petitioner's pay scale was fixed as
Rs.15339+2400 as on 01.10.2014. As per 7th pay commission, the
petitioner's pay was fixed to Rs.50300/- on 01.10.2017. This continues
till his date of retirement with routine annual increment and his basic pay
turns out to Rs.56700/- on his month of retirement on 31.07.2022 AN.
9.It is relevant to refer that some of the employees were
approached this Court by way of batch cases in W.P.Nos.17445 & 17446
of 2008, seeking fixation of their pay in the scale pay applicable to their
original post. This Court vide order dated 02.11.2018, dismissed the said
writ petitions in the following terms:- “It could be seen from the
materials on records that the workshops of Highways Department, where
the petitioners working were closed due to the loss sustained by the
Government. Only on sympathetic view taken by the Government on the
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persons employed in the workshops, a decision was taken to grant
Voluntary Retirement Scheme to its employees who were willing to
accept and other persons were given an option of redeployment in
various other Department as per their educational qualification. The last
and final option was also for retrenching the employees if there was no
suitable post available to accommodate them. In today's scenario in the
country regarding getting an employment itself is a big issue that to in
Government service, the petitioners have been redeployed instead of
retrenchment which has to be accepted in a positive way and the
petitioners cannot seek more benefits in the said redeployment. The
petitioners have been redeployed and their pay has been protected instead
of returning”.
10.It is pertinent to mention that the Rules were relaxed for
availing pay protection for redeployed employees and the same is evident
from the order impugned, wherein, it has been stated that the said
difference would be adjusted by way of personal pay. Having accepted
the same, the petitioner has approached this Court, that too, after a lapse
of 8 years, which is inordinate delay without any plausible explanation
on the part of the writ petitioner.
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11.This Court is of the firm view that the petitioner's interest has
been protected by redeployment by the respondents and the petitioner
cannot seek more pay comparing himself with others. Despite
petitioner's redeployment, no recovery has been made and the same is
confirmed by the learned Additional Government Pleader on instructions.
Therefore, it is clear that the pay of the petitioner is duly protected till his
retirement. There is no merit in this writ petition and there is no reason
to interfere with the order impugned. This writ petition is liable to be
dismissed.
12.In the result, this writ petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
22.04.2025
NCC : Yes / No
Index : Yes / No
gns
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To
1.The Secretary,
Department of Highways and Minor Ports,
Fort St George, Chennai-600001.
2.The Director General,
Highways Department,
Guindy, Chennai-5.
3.The Director,
Highways Research Station,
Highways Department,
Guindy, Chennai.
4.The Divisional Engineer,
Highways,
Quality Control Division,
Madurai-625002.
5.The Superintending Engineer,
(Highways), Madurai
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M.JOTHIRAMAN, J.
gns
22.04.2025
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