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2013 DIGILAW 2544 (MAD)

N. Kumaran v. Government of Tamil Nadu

2013-07-18

M.VENUGOPAL

body2013
ORDER The Petitioner has filed the present writ petition, seeking a declaration from this Court to the effect that the order of the second respondent in R.C. No.92088/2008/SF3 dated 24.8.2008 in so far as extending the time scale of pay as per the Government Order only in respect of employees who are on consolidated pay or on daily wages and excluding the employees who are on time scale of pay, which is less than the time scale of pay fixed by the first respondent dated 28.9.2007 in G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department. Further, he has sought for passing of an order in directing the respondents to fix his wages in the time scale of Rs.2000-60-2300-70-2850-80-3130 as prescribed in clause 7 of the aforesaid Government Order together with arrears. 2. The Petitioner has studied upto plus 2 and also obtained a Diploma Certificate in Co-operation. He was appointed by the third respondent as Packer on 20.2.1995 on daily wage basis. Subsequently, he was appointed as Salesman on 1.7.1999. His salary was fixed in the time scale of pay of Rs.1500-25-1625-30-1775-40-1975-50-2225. The Petitioner is continuously working on and from 20.2.1995. 3. According to the Petitioner, due to ban on recruitment, his services were not regularised all these years though he is working continuously. His appointment is within the cadre strength and is within the age limit and also possessing the required qualification. 4. It comes to be known that the first Respondent issued G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 fixing the pay scale for the salesmen working in various Co-operative Societies. The first respondent fixed the pay scale of Rs.2000-3130 in respect of salesmen working for more than five years, the pay scale of Rs.2,500-4750 in respect of selection grade salesmen and a consolidated wage of Rs.3,000/- per month in respect of salesmen, who have worked for less than five years. As regards the employees serving for more than five years, along with the time pay scale, the Government directed to pay Dearness Allowance and House Rent Allowance. The wages so fixed shall come into effect from the date of issuance of Government Order dated 28.9.2007. 5. As regards the employees serving for more than five years, along with the time pay scale, the Government directed to pay Dearness Allowance and House Rent Allowance. The wages so fixed shall come into effect from the date of issuance of Government Order dated 28.9.2007. 5. The plea taken on behalf of the Petitioner is that after issuance of G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007, the second respondent issued order dated 25.10.2007, by mentioning that the benefit of the said G.O. can be extended only to such of the Salesmen/Packers, who were regularly appointed or who were regularised pursuant to the order of the Hon'ble Supreme Court, which is not correct, because of the fact that the second Respondent has no authority in law to pass such an order. 6. Apart from the above, the case of the Petitioner is that the second Respondent issued R.C.No.92088/2008/SF3 dated 24.8.2008 extending the benefit of the time scale of pay fixed by the Government or by the Registrar even to persons, who are irregularly appointed and who are receiving either consolidated wages or daily wages. He has not been given the time scale of pay fixed in G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007, because of the reason that he has already been in the time scale of pay and further, he is not in receipt of consolidated wages or Daily wages. 7. The categorical stand taken on behalf of the Petitioner is that in terms of G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007, the Petitioner is entitled to the time scale of pay of Rs.2000-60-2300-70-2850-90-3130, inasmuch as he has put in more than five years of service as Salesman. In effect, the plea taken on behalf of the Petitioner is that the proceedings of the second Respondent dated 24.8.2008 will only apply to employees, who are getting consolidated wages or daily wages. 8. The Learned counsel for the Petitioner urges before this Court that the order of the second Respondent dated 25.10.2007 insofar as excluding the Petitioner from receiving the time scale of pay fixed in G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 is per se illegal and contrary to law. 9. 8. The Learned counsel for the Petitioner urges before this Court that the order of the second Respondent dated 25.10.2007 insofar as excluding the Petitioner from receiving the time scale of pay fixed in G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 is per se illegal and contrary to law. 9. Expatiating his submissions, Learned counsel for the Petitioner contends that the employees, who are in consolidated wages or who are receiving daily wages are permitted to receive the benefit in terms of the G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 and denying the same benefit to the Petitioner is in violation of Articles 14 and 16 of the Constitution of India. 10. The Learned counsel for the Petitioner vehemently submits that the out-turn of work performed by the Petitioner is not different from the work done by a person, who was receiving the consolidated wages or daily wages. In such a fact situation, the first Respondent, while determining the wages, had taken note of only the length of service and there is no justification for the second Respondent to deny the wages fixed under G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 to the Petitioner simply on the ground that he is already receiving wages in the time scale of pay. 11. Mrs. P. Rajalakshmi, Learned Government Advocate appearing for Respondents 1 and 2 submits that as per the cadre strength, the post of Packer is not there in the third respondent-Society and therefore, the Petitioner is not entitled to claim the benefits averred under G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007. 12. The Learned counsel for the third Respondent submits that though the Petitioner possesses age and educational qualification for the post of Packer, his services were not regularised and there is no provision for the post of Packer in the area of Rural Fair Price Shop. Further, it is brought to the notice of this Court that 'Rettanai village' is exclusively rural area and hence the post of Packer in which the Petitioner appointed originally was not regularised by the Joint Registrar of Co-operative Societies, Villupuram as per the direction of this Court in W.P. Nos.2501 and 2502 dated 24.10.2002. Further, it is brought to the notice of this Court that 'Rettanai village' is exclusively rural area and hence the post of Packer in which the Petitioner appointed originally was not regularised by the Joint Registrar of Co-operative Societies, Villupuram as per the direction of this Court in W.P. Nos.2501 and 2502 dated 24.10.2002. Added further, it is the plea of the third Respondent that no cadre strength was fixed by the Registrar in respect of Salesman and Packer in the P.D.S. shops. 13. The Learned counsel for the third Respondent makes a fervent submission that the second Respondent has recommended for not extending the benefit of the wage revision in respect of employees whose services were not regularised. The Government, while issuing the G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007, referred in its order the recommendation of the second respondent and therefore, it is implied that the Government has accepted the recommendation of the second Respondent and as such, the action of the second Respondent could not be said that it is without any jurisdiction. But the same second respondent in his proceedings RC 92088/2008 SF 3 dated 24.8.2008 has relaxed the conditions on the request of the Regional Joint Registrars. 14. Besides the above, the Learned counsel for the third Respondent projected an argument that the Petitioner was receiving the salary in the time scale and therefore, his pay has not been revised by the third Respondent. 15. Also that the third Respondent's case is that the Petitioner was appointed initially in the post of Packer and the scale of pay is only Rs.1800 to 2525 and therefore, the pay of the Petitioner could not be fixed in the time scale of pay intended for the post of Salesman as requested by the Petitioner. 16. At this juncture, this Court makes a pertinent and useful reference to the following averments made by the third respondent in paragraph 6 of the counter, which runs as under:- "It is also submitted that the 2nd respondent in the letter R.C. 92088/2008 SF 3 dated 21.8.2008 (correct date is 24.8.2008) has revised his earlier instructions and extended the benefit of pay scales even to the employees appointed irregularly. But in the Registrar's letter cited it is clarified that revised scales of pay is applicable only to the employees who are appointed irregularly who are already on daily wages or on consolidated pay and hence the pay of the petitioner has not been revised since he was already in the time scale of pay." 17. The Learned counsel for the Petitioner, in support of his contention that the employees, who are in consolidated wages or receiving daily wages, are permitted to get the benefit of G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 and denying same to the Petitioner is in negation of Articles 14 and 16 of the Constitution of India, seeks an aid of the decision of the Hon'ble Supreme Court reported in the case of JAIPAL AND OTHERS v. STATE OF HARYANA AND OTHERS ( (1988) 3 S.C.C. 354 ) Special Pages at 362 and 363, wherein it is observed and laid down as follows:- "6. We have given our anxious consideration to the material placed before us. On a careful analysis of the same we find that the nature of duties and functions performed by instructors are similar to those performed by squad teachers. The functions and duties of both classes of persons are primarily directed to advance the cause of education to bring social awareness among the people in the rural areas and to create interest in various social economic and educational activities. Bringing adults to centre for educating them is a difficult task and to impart education to drop-outs children is not an easy job. One of the main duties of the instructors is to motivate the adults and drop-out children to participate in the activities and to motivate them for taking education. The instructors teach 4 hours a day and thereafter they have to do survey work and motivation work in addition to that the instructors are required to carry out additional duties which are assigned to them by the Department. This is evident from the circular letter dated 4-3-1987 issued by the Joint Director, Adult Education (Annexure B) to the affidavit of Rajender Singh petitioner. The letter was circulated to all the instructors of adult and informal education, it reads as under: “Dear To bring adults in centres is a very difficult task. This is evident from the circular letter dated 4-3-1987 issued by the Joint Director, Adult Education (Annexure B) to the affidavit of Rajender Singh petitioner. The letter was circulated to all the instructors of adult and informal education, it reads as under: “Dear To bring adults in centres is a very difficult task. This is possible only when our centres are attractive and adults feel happy to come to the centres and forget all their worries after coming to the centre. Instructors should behave with the adults in such a way that they think him their friend and guide. The adults should be told that by hearing, reading and writing, they can know about the government schemes made for their benefit and progress. Every Instructor is supposed to know about all such schemes so that they can guide their students. The adults should get the guidance from the instructors as to how they can get loans from various banks and cooperative societies. In the coming year we must equip the instructors with training so that they can fulfil the responsibility given to them. In a meeting held at Karnal you were told about the facilities being given to widows and old persons. You have to properly propagate the same. I will be very grateful to you for circulating this letter to all the instructors and supervisors. Office Distt. Adult Education Officer, Karnal. Page No. A-d-4/3480-659, Karnal dated 13-3-1981. One copy of the letter to be circulated to all instructors and supervisors of Adult and Informal Education for necessary action. District Adult Education Officer, Karnal, 13-2-1987.” The aforesaid duties which are required to be performed by the instructors are in addition to their four hour teaching duty. Further the instructors are required to organise sports like kho-kho, kabadi and athletics, and to participate in the local functions and to motivate affluent villagers to give donations for the adult education scheme. This is evident from a circular letter issued by the District Adult Education Officer, Ambala on 12-11-1986 (Annexure C to the affidavit of Rajender Singh). Having regard to these facts and circumstances we are of the view that there is no difference in the nature of duties of the instructors and squad teachers and both of them carry out similar work under the same employer. Having regard to these facts and circumstances we are of the view that there is no difference in the nature of duties of the instructors and squad teachers and both of them carry out similar work under the same employer. The doctrine of equal work equal pay would apply on the premise of similar work, but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of equal work equal pay would apply and it would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work." 18. As far as the present case is concerned, the out-turn of work done by the Petitioner is not different from the work done by the employee, who is receiving consolidated wages or daily wages. Further, he is working as Salesman from 1.7.1999 to till date. Earlier he served as Packer from 20.2.1995 (from the date of his appointment till 30.6.1999). Also it is represented before this Court on behalf of the Petitioner that in the year 1997, the Petitioner has been brought under the time scale of pay of Rs.1,500/-. 19. Be that as it may and in view of the fact that the Petitioner as on date is working as Salesman in the third Respondent-Society, this Court is of the considered opinion that he has to receive the benefit like that of similarly placed Salesman in respect of the time scale of pay. In this regard, he cannot be singled out or discriminated. When the second Respondent has issued the proceedings in RC 92088/2008 SF 3 dated 24.8.2008 extending the benefit of time scale of pay fixed by the Government or by the Registrar even to the persons who are irregularly appointed and who are receiving either consolidated wages or daily wages, this Court unhesitatingly comes to the inevitable conclusion that the time scale of pay mentioned in G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 not being extended to the Petitioner is not per se legal. Per contra, the same cannot be countenanced in any manner. 20. Per contra, the same cannot be countenanced in any manner. 20. As such, the proceedings of the second respondent in RC 92088/2008 SF 3 dated 24.8.2008 is held to be not legal since issuance of the said proceedings itself is against the tenor and spirit of G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007. To put it differently, the G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 in not extending the time scale of pay of Rs.2000-60-2300-70-2850-90-3130 to the Petitioner, is clearly unsustainable in the eye of law. Therefore, this court is perforced to interfere with the said order of the second Respondent in RC 92088/2008 SF 3 dated 24.8.2008 insofar as extending the time scale of pay as per the Government Order in G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 only in respect of employees who are on consolidated pay or daily wages and excluding the employees, who are on time scale of pay fixed by the first Respondent and resultantly, this Court sets aside the same in furtherance of substantial cause of justice. Consequently, this Court directs the the respondents to fix the wages of the petitioner in the time scale of Rs.2000-60-2300-70-2850-80-3130 as prescribed in clause 7 of G.O. Establishment No.289, Co-operative, Food and Consumer Protection (CA2) Department, Co-operative, Food and Consumer Protection (CA2) Department dated 28.9.2007 and to pay arrears to him within a period of Ten weeks from the date of receipt of copy of this order. Accordingly, the writ petition is allowed. Consequently, the connected M.P. is closed. However, there shall be no order as to costs.