The Tamil Nadu Water Supply and Drainage Board Secretariat Staff Association v. The Tamil Nadu Water Supply and Drainage Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 30.6.2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 10526, 16385 and 17138 of 1998 and 7787 of 2002W.P. No. 10526 of 1998:-The Tamil Nadu Water Supply and Drainage BoardSecretariat Staff AssociationRep. by its Secretary31/5 Kamarajar SalaiChepauk, Chennai.. Petitionervs.The Tamil Nadu Water Supply and Drainage BoardRep. by its Managing Director31/5 Kamarajar SalaiChepauk, Chennai.. RespondentPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsof the respondent in B.P.Ms. No. 233 dated 29.5.1998 and quash theparagraph 7(iii) at page 4 of the said order. For Petitioner: Mrs. Narmada Sampath for Mr. R. ParthibanFor Respondent : Mrs. Sudarshana SundarW.P. Nos. 16385 & 17138 of 1998:-The Tamil Nadu Water Supply and Drainage BoardAdministrative Staff Association(Regn. No. 2230/MDS)Rep. by its General Secretary.. Petitioner in W.P. No. 16385 of 1998The Tamil Nadu Water Supply and Drainage BoardAccounts Officials Association31 Kamarajar SalaiChennaiRep. by its Secretary https://hcservices.ecourts.gov.in/hcservices/ L.Thangavelu.. Petitioner in W.P. No. 17138 of 1998vs.1.The Secretary to Government Government of Tamil Nadu Rural Development and Water Supply Department Fort St. George, Chennai2.The Managing Director The Tamil Nadu Water Supply and Drainage Board 31/5 Kamarajar Salai Chepauk, Chennai3.The President TWAD Board Secretariat Staff Assn. 31 Kamarajar Salai Chepauk, Chennai.. Respondents in both W.Ps. Petitions filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus calling forthe records of the second respondent relating to B.P. Ms. No. 331dated 08.10.1998 and quash the same and direct the secondrespondent to treat the Assistant Section Officers/ConfidentialSteno Typists of the so called Secretariat on par with theAssistants/Steno typists working in the subordinate offices in thematter of implementation of VIth Pay Commission recommendations andto direct the second respondent to treat the audit assistants inpar with the Assistants Section Officers and Confidential Stenotypists to pay them salary payable to the Assistant, SectionOfficers, Confidential Steno Typists respectively. For Petitioner in: Mr. G. VenkataramanW.P. No. 16385 of 1998 for M/s Aiyar & DoliaFor Petitioner in: Mr. T.N. RajagopalW.P. No. 17138 of 1998 For Respondent 1: Mrs. C.K. Vishnupriya AGPin both W.Ps. For Respondent 2: Mrs. Sudarshana Sundarin both W.Ps. For Respondent 3: Mrs. Narmada Sampathin both W.Ps. for Mr. R. Parthiban https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 7787 of 2002:-1.K. Parthasarathy2.M. Murthy3.T. Palaniappan4.V. Perumal5.T.R. Vasudevan6.G. Sethuraman7.A.S. Sivagnanamani8.M.R. Chellappan9.E. Karunanithi10.R. Sankaran11.T. Selvanesan12.D. Jayabalakrishnan13.C.M. Shanmugam14.P. Murali15.B. Chidambaram16.S. Ganesan17.M. Srinivas18.V. Jaychandran.. Petitionersvs.The Tamil Nadu Water Supply and Drainage BoardRep. by its Managing Director31/5 Kamarajar SalaiChepauk, Chennai.. RespondentPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsof the respondent in B.P.Ms. No. 230 TWAD Estt. (Per.) Wing dated15.12.2001 and quash the same. For Petitioner: Mr. P.R. Raman For Respondent : Mrs. Sudarshana SundarC O M M O N O R D E RHeard the arguments of the learned counsel for the parties andhave perused the records.2.1.W.P. No. 7787 of 2002 is filed by 18 persons seeking tochallenge the order dated 15.12.2001 in B.P. Ms. No. 230 TWAD Estt.(Per.) Wing passed by the respondent Tamil Nadu Water Supply andDrainage Board [for short, 'TWAD Board']. Under the said order, thepay given to the 18 persons was sought to be refixed and also theexcess amount was to be recovered. https://hcservices.ecourts.gov.in/hcservices/

2.2.The very same petitioners, through their association,viz., TWAD Board Secretariat Staff Association earlier filed W.P.No. 10526 of 1998 challenging the proceedings in B.P. Ms. No. 233dated 29.5.1998 more particularly, paragraph 7(iii) of the order bywhich the Managing Director was authorised to implement anyrevision of the orders of the State Government in G.O. Ms. NO. 162Finance Department dated 13.4.1998 and to rectify anydefect/omissions as ordered by the Government from time to time.2.3.W.P. No. 16385 of 1998 is filed by another Association,by name, TWAD Board Administrative Staff Association, challengingthe proceedings in B.P. Ms. No. 331 dated 08.10.1998 and also totreat the Assistant Section Officers (ASOs)/Confidential Steno -Typists (CSTs) working in the Board Secretariat on par with theAssistants/Steno - Typists working in the subordinate offices inthe matter of implementation of VIth Pay Commission. 2.4.In W.P. No. 17138 of 1998, yet another Association, byname, TWAD Board Accounts Officials Association sought for asimilar prayer as that of W.P. No. 16385 of 1998 and to treat theaudit assistants on par with the Assistants, Section Officers andConfidential Steno typists to pay them salary to the Assistant,Section Officers, Confidential Steno Typists. 3.1.Pending the writ petitions, an interim order was passedby this Court on 06.01.1999. In paragraph 17, the following orderwas passed:-"Without prejudice to the contentions of therespective parties, 87 employees listed by TWADBoard will get revised pay of Rs. 5,500 – 9,000corresponding to Rs.1,640 – 2,900 with effect from1.1.1996. This is because of the stay granted inW.P. No. 16618 of 1994. This will be subject tospecific undertaking from the said 87 employees torepay the amount received, if any, in lumpsum, if itis found that they are ineligible at a later date.The others will get scale of pay corresponding toRs.1,400 – 2,600 as the case may be."3.2.Pursuant to the interim order, the employees have givenan indemnity bond to the TWAD Board undertaking as follows:-"I hereby agree to repay any amount received fromTWAD Board towards the annual increment sanctionedto me for the period from 2002 to 2006 and also forsubsequent years which is found inadmissible to meat a later date, without prejudice to the finaldecision to be taken by the TWAD Board based on thefinal disposal of the Court case in the abovematter." https://hcservices.ecourts.gov.in/hcservices/

4.In view of the interconnectivity between all the writpetitions, they were heard together an a common order is beingpassed.It is submitted by all the counsels that the disposal inW.P. No. 7787 of 2002 will give a quietus to all the writpetitions. Hence, that writ petition is taken up first.5.1.It is stated by Mr. P.R. Raman, learned counsel for thepetitioners submitted that out of the 18 writ petitioners, onlyrespondents 2 to 4, 12, 13 and 18 are still in service and othersas they had reached the age of superannuation, are no longer inservice. The learned counsel submitted that when the Vth PayCommission was introduced by the State Government , the same wasadopted by the TWAD Board by issuing B.P. No. 337 dated 06.10.1989.Paragraph 15 of the said order gave the Managing Director the powerto implement the orders of the Government and also to rectify anydefect or omission if ordered by the Government from time to time.By resorting to the said power, the Managing Director passed anorder dated 26.11.1991 revising the scale of pay of the AssistantSection Officers/Confidential Stenographers from 1400 – 2600 tothat 1640 – 2900 w.e.f. 01.6.1988. By this process, this group ofstaff were brought on par with the staff holding similar posts inGovernment Secretariat at Fort St. George. 5.2.This action of the Managing Director came to be objectedto by the Audit Department on 23.11.1992. It was stated that thestaff of the TWAD Board working in its Secretariat cannot becompared with that of the staff in the Government Secretariat.Since the TWAD Board had not taken any policy decision to give thempay parity, the respondent Board passed B.P. Ms. No. 177 dated12.9.1994 and restored their original pay scale and also orderedfor recovery of the amounts paid in excess. While one section ofthe employees welcomed this move, the aggrieved persons filed awrit petition being W.P. No. 5129 of 1995. In that writ petition,it was contended that they are eligible to get the revised scaleand in any event, since they were not heard while orderingrestoration of their original scale of pay, the order was opposedto principles of natural justice. 5.3.This Court accepted the said submission and set aside theorder dated 12.9.1994 vide judgment dated 12.10.2000. It wasdirected in that writ petition that two member of the Board ofDirectors will hear the representations made by the petitionersthrough their Association. Their objections shall be taken intoaccount by a Committee and final orders will be passed by the Boardof Directors and till such time, the earlier order will be kept inabeyance.Pursuant to the said direction, two of the Board ofDirectors went into the representation made by the petitionersthrough their Association and gave a report dated 07.02.2001 to theBoard. https://hcservices.ecourts.gov.in/hcservices/

5.4.In paragraph 11 of the said report, the Committee heldthat method of recruitment and qualification are the same for theBoard Secretariat and the unit offices and they were all recruitedthrough Employment Exchange and the basic qualification of a Degreefrom a recognised university. They had also stated that theemployees of the Board Secretariat and the unit offices are liableto be transferred from one unit to other units. In the Regulation5 of the TWAD Board Service Regulations, 1972, no separateSecretariat service was created and in the Regulations, there is nopost of Section Officer, Assistant Section Officer and ConfidentialSteno – Typists. They have also brought to the notice of the TWADBoard that the appointment made to the post of Assistant SectionOfficers and Confidential Stenographers are no longer being madeand the existing employees alone are continuing in the said post. 5.5. In that view of the matter, they recommended that whilethe distinction should be removed, but, however, some kind of payprotection may be given. Therefore, they made the followingrecommendation as found in the report:-"In view of this and as the Government statedthat their present pay may be protected, thefollowing two alternatives are submitted to theBoard of Directors for consideration:-Alternatives I:-Since the sanction of posts of Asst.Section Officers and Confidential Steno-Typist wasstopped from 1987 onwards, these categories have nowbecome vanishing categories. In view of this andas the Government have directed that the present payof the Asst. Section Officers and ConfidentialSteno-Typist have to be protected, while reducingtheir scales of pay, the Board may consider to allowthe Asst. Section Officers and Confidential Steno-Typists to continue to draw the revised scale of payof Rs. 1640 – 2900 by cancelling the orders issuedin B.P. Ms. No. 177/dt. 12.9.94 and the approval ofthe Government obtained.(OR)Alternative II:-The orders issued in B.P. Ms. 177/ dt.12.9.94 may be enforced however protecting the lastpay drawn by the Asst. Section Officers andConfidential Steno-Typist on the date of issue ofthese orders as directed by the Government in theirletter (MS) No. 103/dt. 29.3.94 and an amendment maybe issued to the above B.P. to this effect." https://hcservices.ecourts.gov.in/hcservices/

5.6.When the matter was placed before the Full Board, itpassed a resolution in B.P. No. 230 dated 15.12.2001. The FullBoard decided to enforce the orders in B.P. Ms. No. 177 dated12.9.1994 but, however, to protect the last pay drawn by the ASOsand CSTs as directed by the government in its earlier order dated29.3.1994 w.e.f. the date of the order to be issued in that regard,it was resolved to allow the scale of pay as directed in the VthPay Commission and for the ordinary grade, it was fixed as 1400 –2600, for the Selection Grade, it was fixed as 1640 – 2900 and forthe Special Grade 2000 – 3200. With this as the basis, it wasallowed to give the equivalent VIth Pay Commission's scales. Itwas also decided to fix the last drawn pay in the lower scale andto treat the difference as a Personal Pay which was to be absorbedin subsequent increments as provided in the Fundamental Rules andalso to regulate the future increments in the lower scale. Findingthat the said direction will create a loss of 150 to 235 per monthwith additional Dearness Allowance, the petitioner's Associationmade representation and since the same was not considered, thepresent writ petition has been filed by the 18 affected individualsand an interim order as noted above was obtained.5.7.Mr. P.R. Raman, learned counsel submitted that grantingthe posts of ASOs and CSTs was originally approved by theGovernment. The Managing Director was also authorised to revisethe pay scales and, therefore, it is not open to them to revise thescales available to the existing employees. He also submitted thatthe two member committee had given two options and it is not clearas to why the Board had not agreed to the first option. He furthersubmitted that these two cadres were vanishing tribe and hence, norecovery need to be made in their pay. Otherwise each of thepetitioner will lose substantial amounts. 6.Per contra, Mrs. Sudharshana Sundar, learned counselsubmitted that the only right of the petitioners projected earlierwas that they were not heard when the restoration of the originalscale of pay took place. The two member committee had recommendedthe enforcement of earlier B.P. With reference to the AlternativeI, it required the approval of the Government and therefore, thatoption was not preferred. The second option was undertaken by theBoard with the least hardship to the petitioners. Further, havingobtained the interim order on conditional basis, they should notturn and refuse to pay the amounts paid to them in excess of theireligibility. The petitioners, if they are really interested inseeking a final relief from this Court, they ought not to havesought for an interim order. When once they got a conditionalorder, they are bound to obey the same. 6.1.While Mrs. Narmada Sampath, learned counsel supported thearguments of Mr. P.R. Raman, Mr. T.N. Rajagopalan andMr.G.Venkataraman supported the stand of the TWAD Board. https://hcservices.ecourts.gov.in/hcservices/

7.The petitioners have not made out a case for pay paritywith that of the Government Secretariat. As they were working inthe Board Secretariat, they are eligible for the pay scale as madeavailable to others. Their stand was negatived by the Board evenearlier and no promotions were made to the posts of ASOs and CSTs.Even their contention was negatived by the two member committeewhich was accepted by the Full Board. They cannot contend contraryto the statutory Regulations framed by the Board. Even the payparity given by the Managing Director was without reference to theBoard and no such policy decision can be taken except by the FullBoard. 8.The question of pay parity or equation of post is apolicy decision over which the Court has no pro-active role byrecommending either a particular scale or equation of posts withsome other department. The Supreme Court in S.C. Chandra and othersv. State of Jharkhand and others [2007 (8) SCC 279] wherein M.Katju, J., in his concurring judgment, held that grant of payscales is an executive or legislative function and not a judicialfunction. The following passages found in paragraphs 24 to 28 and33 to 35 may be usefully reproduced:-Para 24:"The principle of equal pay for equal work waspropounded by this Court in certain decisions in the1980s e.g. Dhirendra Chamoli v. State of U.P.Surinder Singh v. Engineer-in-Chief, CPWD, RandhirSingh v. Union of India, etc. This was done byapplying Articles 14 and 39(d) of the Constitution.Thus, in Dhirendra Chamoli case this Court grantedto the casual, daily-rated employees the same payscale as regular employees.Para 25:It appears that subsequently it was realised thatthe application of the principle of equal pay forequal work was creating havoc. All over Indiadifferent groups were claiming parity in pay withother groups e.g. government employees of one Statewere claiming parity with government employees ofanother State.Para 26: Fixation of pay scale is a delicate mechanism whichrequires various considerations including financialcapacity, responsibility, educational qualification,mode of appointment, etc. and it has a cascadingeffect. Hence, in subsequent decisions of this Courtthe principle of equal pay for equal work has beenconsiderably watered down, and it has hardly everbeen applied by this Court in recent years. https://hcservices.ecourts.gov.in/hcservices/ Para 27:Thus, in State of Haryana v. Tilak Raj it was heldthat the principle can only apply if there iscomplete and wholesale identity between the twogroups. Even if the employees in the two groups aredoing identical work they cannot be granted equalpay if there is no complete and wholesale identitye.g. a daily-rated employee may be doing the samework as a regular employee, yet he cannot be grantedthe same pay scale. Similarly, two groups ofemployees may be doing the same work, yet they maybe given different pay scales if the educationalqualifications are different. Also, pay scale can bedifferent if the nature of jobs, responsibilities,experience, method of recruitment, etc. aredifferent.Para 28:In State of Haryana v. Charanjit Singh discussing alarge number of earlier decisions it was held by athree-Judge Bench of this Court that the principleof equal pay for equal work cannot apply unlessthere is complete and wholesale identity between thetwo groups. Moreover, even for finding out whetherthere is complete and wholesale identity, the properforum is an expert body and not the writ court, asthis requires extensive evidence. A mechanicalinterpretation of the principle of equal pay forequal work creates great practical difficulties.Hence in recent decisions the Supreme Court hasconsiderably watered down the principle of equal payfor equal work and this principle has hardly beenever applied in recent decisions."Para 33:"It may be mentioned that granting pay scales is apurely executive function and hence the court shouldnot interfere with the same. It may have a cascadingeffect creating all kinds of problems for theGovernment and authorities. Hence, the court shouldexercise judicial restraint and not interfere insuch executive function vide Indian Drugs &Pharmaceuticals Ltd. v. Workmen.Para 34:There is broad separation of powers under theConstitution, and the judiciary should notordinarily encroach into the executive orlegislative domain. The theory of separation ofpowers, first propounded by the French philosopherMontesquieu in his book The Spirit of Laws stillbroadly holds the field in India today. Thus, inAsif Hameed v. State of J&K a three-Judge Bench of https://hcservices.ecourts.gov.in/hcservices/ this Court observed (vide paras 17 to 19): (SCC pp. 373-74)“17. Before adverting to the controversydirectly involved in these appeals we may have afresh look at the inter se functioning of the threeorgans of democracy under our Constitution. Althoughthe doctrine of separation of powers has not beenrecognised under the Constitution in its absoluterigidity but the Constitution makers havemeticulously defined the functions of various organsof the State. Legislature, executive and judiciaryhave to function within their own spheres demarcatedunder the Constitution. No organ can usurp thefunctions assigned to another. The Constitutiontrusts to the judgment of these organs to functionand exercise their discretion by strictly followingthe procedure prescribed therein. The functioning ofdemocracy depends upon the strength and independenceof each of its organs. Legislature and executive,the two facets of people’s will, they have all thepowers including that of finance. Judiciary has nopower over sword or the purse nonetheless it haspower to ensure that the aforesaid two main organsof State function within the constitutional limits.It is the sentinel of democracy. Judicial review isa powerful weapon to restrain unconstitutionalexercise of power by the legislature and executive.The expanding horizon of judicial review has takenin its fold the concept of social and economicjustice. While exercise of powers by the legislatureand executive is subject to judicial restraint, theonly check on our own exercise of power is the self-imposed discipline of judicial restraint.18. Frankfurter, J. of the U.S. Supreme Courtdissenting in the controversial expatriation case ofTrop v. Dulles11 observed as under: (US pp. 119-20)‘All power is, in Madison’s phrase, “of anencroaching nature”. … Judicial power is not immuneagainst this human weakness. It also must be onguard against encroaching beyond its proper bounds,and not the less so since the only restraint upon itis self-restraint. … Rigorous observance of the difference between limitsof power and wise exercise of power—betweenquestions of authority and questions of prudence—requires the most alert appreciation of thisdecisive but subtle relationship of two concepts https://hcservices.ecourts.gov.in/hcservices/ that too easily coalesce. No less does it require adisciplined will to adhere to the difference. It isnot easy to stand aloof and allow want of wisdom toprevail, to disregard one’s own strongly held viewof what is wise in the conduct of affairs. But it isnot the business of this Court to pronounce policy.It must observe a fastidious regard for limitationson its own power, and this precludes the Court’sgiving effect to its own notions of what is wise orpolitic. That self-restraint is of the essence inthe observance of the judicial oath, for theConstitution has not authorised the judges to sit injudgment on the wisdom of what Congress and theExecutive Branch do.’19. When a State action is challenged, thefunction of the court is to examine the action inaccordance with law and to determine whether thelegislature or the executive has acted within thepowers and functions assigned under the Constitutionand if not, the court must strike down the action.While doing so the court must remain within itsself-imposed limits. The court sits in judgment onthe action of a coordinate branch of the Government.While exercising power of judicial review ofadministrative action, the court is not an appellateauthority. The Constitution does not permit thecourt to direct or advise the executive in mattersof policy or to sermonise qua any matter which underthe Constitution lies within the sphere oflegislature or executive, provided these authoritiesdo not transgress their constitutional limits orstatutory powers.”(emphasis supplied)Para 34:In our opinion fixing pay scales by courts byapplying the principle of equal pay for equal workupsets the high constitutional principle ofseparation of powers between the three organs of theState. Realising this, this Court has in recentyears avoided applying the principle of equal payfor equal work, unless there is complete andwholesale identity between the two groups (and theretoo the matter should be sent for examination by anExpert Committee appointed by the Governmentinstead of the court itself granting higher pay)."9.The said decision also came to be followed by the SupremeCourt in the subsequent judgment in State of Punjab v. SurinderSingh and another [2007 (12) Scale 602]. Para 7:"In the aforesaid decision one of us (Markandey https://hcservices.ecourts.gov.in/hcservices/ Katju, J.) in his concurring judgment has held thatgranting pay scale is an executive or legislativefunction, and not a judicial function. There isseparation of powers under the Constitution betweenthe three organs of the State, and the judiciaryshould not encroah into the domain of the otherorgans. Montesquieus theory of separation ofpowers broadly applies in India too."10.Therefore, in the light of the above, the contentionsraised by Mr. P.R. Raman cannot be countenanced by this Court.Once the decision of the Board impugned in the writ petition isupheld by this Court, the necessary consequences will follow. Onthe question of recovery, no sympathy can be shown to thepetitioners either on the ground that they were a vanishing tribeor that there will be a huge loss to them. This is especially sothat this Court in the earlier round of litigation, by judgmentdated 12.10.2000, had only kept the order in B.P. No. 177 dated12.9.1994 in abeyance and had given them an opportunity of beingheard. Since the petitioners themselves have got a conditional stayfollowed by their undertakings, this Court is not inclined to grantany interim order by showing any undue indulgence in their favour.11.In the light of the above, W.P. No. 7787 of 2002 and10526 of 1998 will stand dismissed. In W.P. Nos. 16385 of 1998 and17138 of 1998, no orders are necessary as they were filed only as acounter blast to the other two writ petitions. However, there willbe no order as to costs.Sd/-Assistant Registrar/true copy/Sub Assistant RegistrargriTo1.The Secretary to Government Government of Tamil NaduRural Development and Water Supply DepartmentFort St. George, Chennai.2.The Managing DirectorThe Tamil Nadu Water Supply and Drainage Board31/5 Kamarajar SalaiChepauk, Chennai.RA(CO)JJM(17.07.08)Delivery Common Order in W.P. No.10526 of 1998, etc. batch