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2013 DIGILAW 4062 (MAD)

Food Corporation of India v. K. M. George

2013-11-29

N.PAUL VASANTHAKUMAR, R.MAHADEVAN

body2013
JUDGMENT R. Mahadevan, J. 1. Writ Appeal No.2173 of 2011 has been preferred against the order passed in W.P.No.47053 of 2006 and Writ Appeal No.2174 of 2011 is against the order in W.P.No.43050 of 2006. By a common order dated 28.09.2010, the learned Single Judge had allowed the Writ Petitions filed by the employees of the appellant Corporation. 2. Writ Petition No.43050 of 2006 was filed for a Writ of Certiorarified Mandamus, to call for the records of the second appellant in Lr.No.17(24)/2005/PF dated 20.07.2006 and to quash the same and consequently direct the appellants to step up the pay of the Writ Petitioner on par with his immediate junior with effect from 02.12.1996 in the post of Assistant Grade-I with all consequential benefits including monetary benefits arising therefrom. 3. Writ Petition No.47053 of 2006 was filed by the Writ Petitioners for a Writ of Mandamus, to direct the respondents to step up the pay of the petitioners on par with their immediate juniors with effect from 02.12.1996 in the post of Assistant Grade-I with all consequential benefits including monetary benefits. 4. After considering the materials on record and the rival contentions of the Writ Petitioners as well as the respondents, by a common order dated 28.09.2010, the Writ Petitions were allowed by the learned Single Judge. Assailing the orders of the learned Single Judge, common grounds of appeal have been raised by the appellants. 5. The learned counsel appearing for the appellants argued that the stepping up of pay would arise only when there is an anomaly during the pay fixation period and the Writ Petitioners could not seek stepping up of pay on par with their junior R.S.N.Murthy, whose pay was stepped up when he was working as Assistant Grade-II, while by that time the Writ Petitioners were already promoted as Assistant Grade-I. The learned counsel placing reliance upon Circular No.13 of 1997 argued that the case of the Writ Petitioners was not covered by the Circular and that, since the Writ Petitioners had joined the promoted posts immediately, more particularly before 31st December, they are not entitled for stepping up of their pay. The learned counsel further submitted that the juniors were granted stepping up of pay though due to fortuitous circumstances, the stepping up of pay would cause financial stress on the appellants. The learned counsel further submitted that the juniors were granted stepping up of pay though due to fortuitous circumstances, the stepping up of pay would cause financial stress on the appellants. The learned counsel also submitted that the stepping up of pay of the juniors has been cancelled by subsequent proceedings and agitated that the learned Single Judge ought to have dismissed the Writ Petitions. 6. The learned counsel for the appellants has also placed reliance upon the judgment of the Hon'ble Apex Court reported in STATE OF WEST BENGAL & OTHERS vs. DEBASISH MUKHERJEE & OTHERS, [2011 STPL (Web) 814 SC] and stressed that under Article 14 of the Constitution of India, the right to equality is a positive concept and therefore if an irregularity has been committed, the same cannot be extended to others. Learned counsel contended that the stepping up of pay of the juniors was made by mistake and subsequently, the same was cancelled and hence the seniors like the petitioners in the instant case are not entitled to revised pay. 7. Per contra, the learned counsel appearing for the contesting respondents filed a counter in W.A.No.2173 of 2011 and argued that the statements of the appellants are not true, and that many persons in the same Grade have had their pay revised and that the same is evident from the reply to the R.T.I. application. The learned counsel further submitted that as rightly held by the learned Single Judge, by the time the stepping up of pay was cancelled, the pay of the juniors was revised and therefore in reality there was no effect of cancellation of stepping up of pay, as no consequential step of recovery was taken. The learned counsel has also relied upon the judgment of the Division Bench of this Court in W.A.Nos.956 of 2006, wherein this Court refused to interfere with the decision of one of us (N.P.V.,J.), allowing the Writ Petition in W.P.No.4421 of 2006, challenging the recovery proceedings of the very same Corporation from the employees, who were awarded stepping up of pay. The Special Leave Petition filed by the appellants was also dismissed. 8. The Special Leave Petition filed by the appellants was also dismissed. 8. It is pertinent to mention here that in a similar situation, where the pay of the seniors were stepped up on par with the juniors and then later cancelled, the Kerala High Court held that the seniors are eligible for stepping up of pay on par with junior and quashed the recovery proceedings. The Special Leave Petition filed in SLP(C)No.20319 of 2005 was also dismissed by the Hon'ble Apex Court. The learned counsel stressed that in view of the detailed order and right findings, the common order of the learned Single Judge does not warrant any interference. 9. We have considered the rival submissions and perused the judgments relied on. 10. From the records, it can be seen that one P.Nagabooshanam Chetty, K.Sivakumar and K.Ramachandran, who joined the promotional post much later to the Writ Petitioners were granted stepping up of pay on par with R.S.N.Murthy, who was granted pay hike twice. It can also be seen from the records that the stepping up of pay of R.S.N.Murthy was cancelled only because there was a wage revision, which was not extended to the Writ Petitioners, who were much seniors to him. 11. As rightly held by the learned Single Judge, the Writ Petitioners are entitled to the pay revision accorded in 1992, as the same was extended to many other persons. The reply to the R.T.I. application submitted by the respondents in W.A.No.2173 of 2011 also discloses that stepping up of pay was accorded to many persons, who were in the same Grade. Further, it is also clear from the records that the promotion in respect of Assistant Grade-II to Grade-I was re-casted for the period 1989 to 2000 following the orders of the Hon'ble Apex Court in C.A.No.10651 of 1983. 12. The arguments of the learned counsel for the appellants that since the Writ Petitioners joined the promoted cadre immediately and before 31st December, they are not entitled for the benefit of pay revision of the year 1992, cannot be accepted. It is not the case of the appellants that the respondents stand on a different footing, and that they are not eligible to the pay revision on any other ground other than the date of joining in the promoted cadre. 13. It is not the case of the appellants that the respondents stand on a different footing, and that they are not eligible to the pay revision on any other ground other than the date of joining in the promoted cadre. 13. As pointed out earlier, three persons, who are in the same Cadre have been granted the benefit of pay revision, who were also promoted along with the Writ Petitioners in 1994. The common Grade was drawn among the employees of the entire Southern Region and stepping up of pay was accorded to many persons, which is reflected in the reply under the R.T.I. Act. Rightly, the learned Single Judge has culled out the facts and allowed the Writ Petitions ordering stepping up of pay to pay revision, which gave equal monetary benefit, or in other words, what that was taken away by cancelling the stepping up of pay was given by way of revision of pay in 1992. 14. In view of the fact that the revision of pay took place to the post of Assistant Grade-II in 1992, the Writ Petitioners are also entitled for the same. Denial of the same would amount to violation of Article 14 of the Constitution of India. The judgment relied upon by the learned counsel for the appellants is not relevant to the issue, as the Writ Petitions have been allowed on the ground of pay revision in 1992 and not on the ground of fortuitous stepping up of pay. If an employee is eligible to revised pay as per law, the employer is bound to pay the same, even if it causes financial burden. It is not a gratuitous pay that is sought for. The pay revision is equally applicable to all in the same Cadre, when the same is announced. Subsequent promotions and joining dates cannot stand in the way of pay revisions and arrears. 15. Therefore, we do not find any reason to interfere with the common order of the learned Single Judge dated 28.09.2010 and the Writ Appeals are dismissed. The appellants are directed to pay the arrears with 9% interest per annum, from the date of filing of Writ Petitions, within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.