Judgment :- Here is a petition filed by fourteen employees of the Tamil Nadu Slum Clearance Board (in short ‘The Board’), second respondent herein. All the petitioners are working as the Divisional Accountants in the second respondent Board. The Board is the child of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (in short ‘the Act’). Under Sec.37(3) of the Act, the Board may appoint its officials and servants as per its necessity. Under Sec.38(2), the Board fixes the pay and other conditions of service of its employees. There are rules framed by the Board governing the conditions of service of its employees called the Tamil Nadu Slum Clearance Board (Non-technical Subordinate) Service Rules, 1972 (in short ‘the Rules’). It is an admitted position that the Rules framed are still in vogue. 2. The basic challenge in this petition is to G.O.2D.No.40, dated 25-9-1992 and the consequent action taken by the Board, directing the recovery of the excess salaries paid erroneously to the petitioners. Under the aforementioned Government Order, the Government, first respondent herein, directed the Board to revise the pay scale of the Divisional Accountants working in the Board and to bring down their scale of pay from Rs.2000-3200 to Rs.1820-3200 on the ground that the salaries paid to the Divisional Accountants in other State Public Sector Undertakings/Boards like Tamil Nadu Housing Board, Highways and Rural Works Department, Tamil Nadu Water Supply and Drainage Department, etc. were fixed in the pay scale of Rs.1820-3200. The Government having re-fixed the pay scale of the Divisional Accountants working in the Board and directed the recovery of the excess salary paid as a result of erroneous revision of pay scale, the Board has passed the consequent order of recovery dated 22-12-1994. These two orders, viz. Order of the first respondent in G.O.2D.No.40 dated 25-9-1992 and the order of the Board dated 22-12-1994 are challenged in this writ petition. 3. The controversy, in short and shorn of details, is as follows: 3.1 Petitioners are working as Divisional Accountants in the second respondent Board. The post of “Divisional Accountant” in the Board, as per the rules, fall under Category-I while the posts of Estate Officer/Vigilance Officer come under category-II. 3. The controversy, in short and shorn of details, is as follows: 3.1 Petitioners are working as Divisional Accountants in the second respondent Board. The post of “Divisional Accountant” in the Board, as per the rules, fall under Category-I while the posts of Estate Officer/Vigilance Officer come under category-II. There are six other posts falling under Categories III to VIII, which include the posts of Assistant Vigilance Officer; Manager – Circle Office; Office Superintendent – Circle Office; Superintendent – Accounts Section; Superintendent – Common Grade; and Personal Clerk to Chairman – Superintendent Grade respectively. Rule 3 specifies the method of appointment. The post of Divisional Accountant in Category-I, which is a promotional post, is to be filled under Rule 3 firstly by the ‘appointment’ of a S.A.S. Accountant or a Divisional Accountant of the Accountant General’s Office, Government of India, having the experience in ‘Works Audit’ on deputation; and secondly, by ‘promotion’ from Category-II, i.e. from the post of Estate/Vigilance Officer and when qualified candidates are not available in Category-II, from the posts falling under the categories III to VIII, in the same order of priority. The further look at the Rules suggests that for promotion as Divisional Accountant from Categories II to VIII, the following qualifications are prescribed: All qualifications prescribed for Categories-VII and IX; Should have passed the Divisional Accountant Test conducted by the Accountant General. Provided that the said test must have been passed within three attempts. Provided further that in the case of promotion from category V, he should have put in a minimum service of five years in the category before appearing the Divisional Accountant Test conducted by the Accountant General. Thus, the position obtained is that in order to be promoted to the post of Divisional Accountant, the feeder category mainly is Category-II, i.e. Estate/Vigilance Officer and such persons must have passed the Divisional Accountant Test conducted by the Accountant General in three attempts. It is only when such qualified Estate/Vigilance Officer is not available then, the selection pointer moves to Category-III to Category-VIII in that order of priority. The rule is amended subsequently but that does not change the position substantially as shown in the later part of the judgment. 3.2. The pay scales in the Government set-up were bettered by the Fifth Pay Commission. The rule is amended subsequently but that does not change the position substantially as shown in the later part of the judgment. 3.2. The pay scales in the Government set-up were bettered by the Fifth Pay Commission. It is also an admitted position that after the scales of pay of the Government servants were bettered by the application of the recommendations of the Fifth Pay Commission, even the scales of pay of the employees of State Public Sector Undertakings/Boards were also bettered. Prior to the re-fixation of the scales of pay by the Fifth Pay Commission, the scale of pay applicable to the post of Divisional Accountant was Rs.1160-1950. Same was the scale of pay for Estate Officer and Vigilance Officer and also for the Superintendent (Selection Grade). Though the post of Divisional Accountant was a promotional post, the only advantage that an Estate/Vigilance Officer got by way of promotion was the notional increment. Same would be the case of superintendent (Selection Grade). There is a post of ‘Assistant’ in Category-IX which also includes the posts of Fair Copy Superintendent, Upper Division Estate Inspector and Cashier. Petitioners plead and it is not disputed that an Assistant serving in the Board could not directly become a Divisional Accountant by promotion and that it is not a feeder category post for promotion as Divisional Accountant. The Government too has taken this position in their letter No.56671/R2/82-1 dated 7-2-1983. This is not disputed by the learned Government Advocate or the learned standing counsel for the Board. 3.3. After the advent of the Fifth Pay Commission, the Government went on to pass G.O.Ms.No.802 dated 7-8-1989. This was for the purposes of culling out the principles on which the Fifth Pay Commission’s recommendations would be made applicable to the employees in State owned Corporations or Public Sector Undertakings/Boards. Under clause (iv) of paragraph 2 of the said Government Order, before the revised pay scales were made applicable and allowed in case of the employees of these undertakings or as the case may be, the Board, formal approval was made a must. Under clause (iv) of paragraph 2 of the said Government Order, before the revised pay scales were made applicable and allowed in case of the employees of these undertakings or as the case may be, the Board, formal approval was made a must. There is a very significant paragraph in this Government Order, on which the petitioners heavily rely, i.e. Paragraph 2(vi), which reads as under: “Though the nature of work in a post in the State Public Sector Undertakings/Boards is not comparable with that of a post in the Government Department due to less onerous nature of duties and responsibilities in the former case, yet identical scales of pay may have been allowed in the State Public Sector Undertakings/Boards just for the reason that the nomenclature of the post is the same. The State Public Sector Undertakings/Boards should obtain prior permission of Government for revision of scales of pay for such posts” It so happened that in terms of this, the Board passed a resolution bearing No.222 dated 8-9-1989 and decided to approve the proposal for implementing the revised scales of pay sanctioned in the G.O.Ms. No.666 for its staff. In that, the scale of pay suggested for the post of Divisional Accountant was Rs.2000-3200. The Government approved this by G.O.Ms.No.965 dated 28-9-1989. Thus, from that date the scale of pay of Rs.2000-3200 became applicable to the Divisional Accountants serving in the Board. Petitioners assert that the same scale of pay was made applicable even to the feeder category posts of Estate Officer/Vigilance Officer and the Superintendent (Selection Grade), who were drawing the identical scales of pay under the Fourth Pay Commission. Thus, the petitioners point out that the scale of pay of the Divisional Accountant and its feeder category posts of Estate/Vigilance Officer and Superintendent (Selection Grade) was identically maintained and fixed at Rs.2000-3200 and this was approved by the Government specifically on the basis of the resolution No.222 dated 8-9-1989. So far it was alright. 3.4. Thereafter, however, the Government passed the impugned order, G.O.Ms.2D.No.40, dated 25-9-1992. So far it was alright. 3.4. Thereafter, however, the Government passed the impugned order, G.O.Ms.2D.No.40, dated 25-9-1992. By this, the Government directed the Board, using its authority under Sec.44 of the Act, to cancel the fixation of scale of pay at Rs.2000-3200 to the Divisional Accountants of the Board and re-fix the scale of pay at Rs.1820-3200 and to recover the excess amount paid as a result of erroneous revision of scale of pay from the pay of the Divisional Accountants. Needless to say, that the Board has sent its impugned communication dated 22-11-1994 seeking to recover the allegedly excess amount paid to its Divisional Accountants on that basis. These two communications are challenged in the present writ petitions. 4. Learned counsel for the petitioners urges firstly that the action of the Government in directing the Board to cancel the fixation of scale of pay at Rs.2000-3200 and to re-fix the same at Rs.1820-3200 is patently illegal and incorrect as it is wholly arbitrary and unreasonable. Learned counsel alleges breach of Art.14 on that account. In support of his argument, learned counsel submits that the Government has compared the unequals for the purposes of re-fixing the scales of pay without taking into consideration the relevant factors like the relevant rules, hierarchy of the posts, duties undertaken by the Divisional Accountants and the other relevant factors. Learned counsel points out that the post of Divisional Accountant in the Board has been singled out from the two other posts, viz. Estate/Vigilance Officer and Superintendent (Selection Grade) and while the scales of pay of the other two posts are retained, the scale of pay of the post of Divisional Accountant has been lowered down with the absurd result that though the Divisional Accountant is a promotional post to the posts of Estate/Vigilance Officer and Superintendent (Selection Grade), the scale of pay for that post would be lesser in comparison to the aforementioned two posts, which are feeder category posts. In that, learned counsel points out that the Government has considered the totally irrelevant factor of ‘nomenclature’ of the posts instead of considering the relevant factors like the hierarchy of the posts, duties undertaken by that posts and relevant rules which admittedly remain unchanged even today. 5. In that, learned counsel points out that the Government has considered the totally irrelevant factor of ‘nomenclature’ of the posts instead of considering the relevant factors like the hierarchy of the posts, duties undertaken by that posts and relevant rules which admittedly remain unchanged even today. 5. Learned Government Advocate, however, supports the Government Order and says that the action taken by the Government is within its powers and in keeping with the spirit of G.O.Ms.No.802 , dated 7-8-1989, under which the principles were culled out to make applicable the recommendations of the Fifth Pay Commission to the employees of the State Public Sector Undertakings/Boards like the second respondent. Learned counsel says that the post of Divisional Accountant in the other Boards like Tamil Nadu Housing Board, Highways and Rural Development Department, Tamil Nadu Water Supply and Sewerage Board, etc. as also in the Government set-up draws the scale of pay of Rs.1820-3200 and, therefore, the Government was justified in re-fixing the scale of pay of Divisional Accountants working the second respondent Board. 6. On these rival contentions, it is to be considered whether the action of the Government can be justified. 7. Learned counsel for the petitioners provided a comparative chart in the matter of hierarchy of the posts. He points out that the employees who were serving in the second respondent Board had to travel a longer distance for reaching the post of Divisional Accountant. He points out that the feeder category posts to the post of Divisional Accountant by way of promotion are Estate/Vigilance Officer, which come under Category-II. He further pointed out that an Assistant, a post covered under Category-IX , had to become Superintendent first and the Superintendent, who had put in ten years’ of service alone would become the Superintendent (Selection Grade) though as a Superintendent the further promotion could be to the post of Estate/Vigilance Officer. Learned counsel, therefore, contends that an Assistant in Category-IX had to first become an Estate/Vigilance Officer by way of promotion and he could not be directly promoted to the post of Divisional Accountant. Learned counsel points out that in the Government set-up, however, an Assistant, who was in the scale of pay of Rs.1200-2040, can directly be promoted to the post of Divisional Accountant. Learned counsel points out that in the Government set-up, however, an Assistant, who was in the scale of pay of Rs.1200-2040, can directly be promoted to the post of Divisional Accountant. Learned counsel, therefore, points out that where as the post of Assistant is a feeder category post to the post of Divisional Accountant in the Government set-up, such is not the situation in the second respondent Board where an Assistant has to earn two promotions before being eligible to be promoted as a Divisional Accountant. Learned counsel asserts that in case of the other State Public Sector Undertakings/Boards like Tamil Nadu Housing Board, Highways and Rural Development Department and Tamil Nadu Water and Sewerage Board, etc. the situation is entirely different in the sense that the Assistants can directly be promoted to the post of Divisional Accountant. Learned counsel, therefore, says that in equating the Divisional Accountants of the second respondent Board with the other Divisional Accountants serving in other Boards and in the Government set-up, the Government has treated “unequals” equally. Learned counsel further submits that this has been done on the sole consideration of the identity of the nomenclature of the three posts which, according to the learned counsel, is an irrelevant factor. 8. There can be no dispute that in paragraph 2 of the impugned Government Order, G.O.2D.No.40, the Government proceeds to suggests that there was a proposal by the Tamil Nadu Housing Board for revision of scale of pay of Divisional Accountant on par with the scale of pay of Divisional Accountant in Tamil Nadu Slum Clearance Board and at the time of its consideration it was noticed that while the scale of pay of Divisional Accountants in Slum Clearance Board was Rs.2000-3200, the scale of pay of Divisional Accountants in the Housing Board was Rs.1820-3200, which was identical to the scales of pay of Divisional Accountants in Highways and Rural Development Department and Tamil Nadu Water Supply and Sewerage Board. 9. Learned counsel invites my attention to paragraph 2 of the said Government Order and submits that this was basically the reason why the Government seems to have undertaken this exercise of re-fixing the scale of pay of the Divisional Accountants serving the second respondent Board. 9. Learned counsel invites my attention to paragraph 2 of the said Government Order and submits that this was basically the reason why the Government seems to have undertaken this exercise of re-fixing the scale of pay of the Divisional Accountants serving the second respondent Board. He then invites my attention to paragraph 3 and points out that the only reason given for re-fixation was that there was a direction from the Finance Department that no deviation should be made in the standard scale of pay prescribed by the Government and no alteration should be made on the maximum of the scale of pay. In paragraph 3, the Government observes that the scales of pay fixed to the Divisional Accountants of Highways and Rural Works Department was Rs.1640-2900 as per G.O.Ms.No.666, which was subsequently revised to Rs.1820-3200. It then proceeds to observe that the Divisional Accountants in Highways and Rural Works Department, Slum Clearance Board and Housing Board were on the pre-revised scale of pay of Rs.1160-1950 has also been placed in the revised scale of pay of Rs.1820-3200. The further observation is: “the Government consider that it would be appropriate to place all these posts on the same scale of pay of Rs.1820-3200. Therefore, adoption of scale of pay of Rs.2000-3200 to Divisional Accountants of Tamil Nadu Slum Clearance Board by the Tamil Nadu Slum Clearance Board is not in order.” Learned counsel, therefore, rightly points out that the only reason why the scale of pay of the petitioners were brought down was because the scale of pay of the Divisional Accountants in other State Public Sector Undertakings/Boards was fixed at Rs.1820-3200. It seems that probably the Government has thought the scales of pay of the Divisional Accountants in Highways and Rural Works Department, Slum Clearance Board and Housing Board were prior to their revision were Rs.1160-1950 and since their pay scales were fixed at Rs.1820-3200, it was justified in fixing the scale of pay of the Divisional Accountants in the second respondent Board also at Rs.1820-3200 and not at Rs.2000-3200 as was already done. This, according to the learned counsel, suggests the mechanical approach on the part of the Government. 10. This, according to the learned counsel, suggests the mechanical approach on the part of the Government. 10. On the other hand, learned Government Advocate pointed out that the Government was justified in its action because the Divisional Accountants, who were drawing the same scale of pay of Rs.1160-1950 in other departments, were fixed at Rs.1820-3200 and, therefore, there would be no question of giving a better treatment to the Divisional Accountants working in the second respondent Board. 11. On this backdrop, it will have to be seen as to whether the Divisional Accountants in the other State Public Sector Undertakings/Boards were comparable to the Divisional Accountants in the second respondent Board. In that, there is obviously a sharp difference because while in the case of Divisional Accountants in the other Boards and Government set-up, an Assistant could directly be promoted to the post of Divisional Accountant while in case of the second respondent Board that was not the position. This was not disputed by the learned Government Advocate or by the learned standing counsel for the second respondent. Once it is found that the hierarchy of promotion is different the Government set-up and the other Boards in comparison to the hierarchy of promotion in the second respondent Board, it will be futile to treat all of them equally because that will be unreasonable as amounting to equal treatment of the unequals. It is indeed true that an Assistant in the second respondent Board had to first become a Superintendent, then as Estate/Vigilance Officer and then alone he could be promoted to the post of Divisional Accountant that too, if he acquired the necessary qualifications prescribed for that post. Such does not seem to be the position in the Government set-up or in the other Departments/Boards mentioned in the impugned order. Learned counsel is undoubtedly right in saying that the Government has merely gone on the nomenclature of the post, i.e. ‘Divisional Accountant’ and not on the nature of the duties undertaken, hierarchy of promotion, relevant rules, etc. Considering the Government Order, on its face value, there does not seem to have been made any attempt to see whether the post of Divisional Accountant in the second respondent Board, which post the petitioners herein are holding, was comparable to the post of Divisional Accountant in the other State Public Sector Undertakings/Boards or in the other Government set-up. Considering the Government Order, on its face value, there does not seem to have been made any attempt to see whether the post of Divisional Accountant in the second respondent Board, which post the petitioners herein are holding, was comparable to the post of Divisional Accountant in the other State Public Sector Undertakings/Boards or in the other Government set-up. Even in the counter, there is no justification for this “equal treatment of the unequals”. 12. In this behalf, learned counsel further points out that in the rules, if the post of Estate Officer/Vigilance Officer in Category-II is a feeder category to the promotional post of Divisional Accountant in Category-I, the scale of pay of the promotional post, i.e. Divisional Accountant cannot be less than that of the feeder category post, which is an inferior post. This argument is tried to be refuted by the learned Government Advocate as also by the learned standing counsel for the Board by pointing out that there is an amendment to Rule 3 inasmuch as the post of Estate Officer/Vigilance Officer is now upgraded by bringing it on part with the post of Divisional Accountant and it is provided that an Estate Officer/Vigilance Officer can be ‘transferred’ to the post of Divisional Accountant and thereby it is tried to be suggested by the learned counsel that the post of Estate Officer/Vigilance Officer does not remain an inferior post or feeder category post to the post of Divisional Accountant. 13. I am afraid, even this amendment, which has been brought in 1992 (to which no reference was made in the counter filed by the Government), does not help the Government at all because still the absurd results would continue in the sense that if a person, who is working as Estate Officer/Vigilance Officer, is transferred to the post of Divisional Accountant, his scale of pay will still be on the lower side and in that sense, the post of Divisional Accountant, which hitherto was a promotional post would become a inferior post to the post of Estate/Vigilance Officer. The fact remains that the absurdity would still persist. The amendment, therefore, does not help the respondents. Unfortunately, the rules and even the amendment have been completely ignored by the Government in passing the impugned government Order. 14. In fact, in G.O. Ms. The fact remains that the absurdity would still persist. The amendment, therefore, does not help the respondents. Unfortunately, the rules and even the amendment have been completely ignored by the Government in passing the impugned government Order. 14. In fact, in G.O. Ms. No.802, while formulating the guiding principles vide paragraph 2(vi), a note was liable to be taken of the fact that the the nature of work in a post in the State Public Sector Undertakings/Boards could not at times be comparable to the posts in Government Departments. In case of former, the nature of duties might be less onerous and, therefore, the nomenclature of the post should not be a guiding factor and if the State Public Sector Undertakings/Boards wanted to bring the posts having the same nomenclature on par with the posts in the Government set-up having better scale of pay, prior permission of the Government was a must. I am afraid, the Government has ignored this very basic principle and has chosen to go by the nomenclature in the reverse manner, i.e. to bring down the scale of pay payable to a post which was in fact a higher post and having higher and more onerous nature of duties. It is the claim of the petitioners that the duties of the Divisional Accountants working in the second respondent Board are more onerous inasmuch as they have to also look after the establishment and administrative matters in addition to the works relating to the accounts and whereas in other departments, the Divisional Accountants did not have such onerous duties. In their counter, the Government has studiously avoided to answer this claim and have generally reiterated by saying that these Divisional Accountants have identical responsibility in the organisations mentioned above. There was a specific claim made by the petitioners regarding the nature of the duties performed by them. The Government having failed to answer their claim, which was made in paragraph 4 of the affidavit, it must be held that the claim of the petitioners has gone unanswered and, therefore, admitted by the Government. It is indeed a case where the Government seems to have gone on the basis of the nomenclature rather than on the nature of the duties. It is indeed a case where the Government seems to have gone on the basis of the nomenclature rather than on the nature of the duties. Even in paragraph 6 of the affidavit, the petitioners have asserted and repeated their claim that the duties of the Divisional Accountants in the second respondent Board are more onerous. There is again no reply to this assertion in paragraph 9 of the counter which deals with the averments made in paragraphs 6 to 10 of the affidavit. In short, the Government has done the exercise of bringing down the scale of pay of the petitioners, who are holding the post of Divisional Accountant, without a proper exercise and on the totally irrelevant considerations that such scales of pay are available to the similarly nomenclatured posts in other State Public Sector Undertakings/Boards. There is no exercise on the part of the Government to compare the nature of duties or the other relevant factors like hierarchy of promotion, relevant rules, etc. With the result, some absurd results have ensued as I have already shown above. In that view, the petition must succeed. 15. In the result, the petition succeeds. Rule is made absolute. The Government-first respondent is directed to pay Rs.3,000/- by way of costs. W.M.P. Nos.1287, 1288 of 1995 and 16373 and 16374 of 1997 are closed.