The Chief General Manager, State Bank of India, Local Head Office, 21, Rajaji Salai, Madras-600001 v. S. Subramani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.7.2008CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALWrit Appeals No.2252 of 1999 and 2584 of 2003,andC.M.P.No.2485 of 2001 and WAMP.No.3989 of 2003W.A.No.2252 of 1999:1.The Chief General Manager, State Bank of India, Local Head Office, 21, Rajaji Salai, Madras-600001.2.The Branch Manager, State Bank of India, Asaveerankudikadu, Ariyalur Tk., Tiruchirapalli District.3.The Chairman, Canara Bank, Head Office, Bangalore.... AppellantsVs.1.S.Subramani2.S.Govindan3.G.Kaliaperumal4.K.O.Jacob5.T.Savarimuthu6.P.Sivaperuman7.S.M.Samuel8.U.Ramasamy9.R.Viswanathan10.S.Rangachari11.M.Veeramalai https://hcservices.ecourts.gov.in/hcservices/

12.K.H.R.Khan13.M.Jaffer Sathik14.K.Subramanian15.K.S.Oommen16.G.D.Prithivaraj17.The Secretary to Government of India, Ministry of Finance, Department of Economic Affairs (Banking) Division, New Delhi.18.The Chairman, Bank of Baroda, Baroda.... RespondentsW.A.No.2584 of 2003:Bank of Baroda,rep.by its Chairman, Baroda... AppellantVs.1.S.Subramaniam2.S.Govindan3.G.Kaliaperumal4.K.C.Jacob5.T.Savarimuthu6.P.Sivaperuman7.S.M.Samuel8.U.Ramasamy9.R.Viswanathan10.S.Rangachari11.M.Veeramalai12.K.H.R.Khan13.M.Jaffer Sathik14.K.Subramanian15.K.S.Oommen16.G.D.Prithivaraj https://hcservices.ecourts.gov.in/hcservices/

17.The Secretary to Government of India, Ministry of Finance, Department of Economic Affairs (Banking) Division, New Delhi.18.The Chief General Manager, State Bank of India, Local Head Office, 21,Rajaji Salai, Madras-600001.19.The Branch Manager, State Bank of India, Asaveerankudikadu, Ariyalur Tk., Tiruchirapalli District.20.The Chairman, Canara Bank, Head Office, Bangalore.... Respondents* * *Both the Writ Appeals are filed under Clause 15of the LettersPatent, as against the order of the learned single Judge of thisCourt, made in W.P.No.16609 of 1990, dated 27.7.1999. WritPetition filed under Article 226 of the constitution of Indiapraying for the issue a writ of Certiorarified Mandamus, order,direction particularly in the nature of Writ, calling for therecords relating to the proceedings bearing F.No.12/7/90-SCT (B),dated 16.5.1990 on the file of the first respondent, includingthe circular No.47/85, dated 9.10.1985 by the second respondentand also the order passed by the III Respondent in his proceedingsNo.RM IV.15812-12-213, dated 16.3.1990 and quash the same as nuland void consequentially direct the respondents to refix the payof the petitioners:(i) Either to compare the last drawn defence pay of thepetitioners with the beginners pay as per third settlement;(ii) or to inflate the last drawn defence pay of thepetitioners also by 60% notionally and compare with the beginnerspay in bank as per IVth settlement since the latter is alreadyinflated by 60% and to pay the petitioners with retrospectivearrears to be paid and other benefits thereto and thus renderjustice. https://hcservices.ecourts.gov.in/hcservices/ * * *For appellants in : Mr.V.Karthick for both the appeals : Mr.T.S.Gopalan & Co.For R.1 to R.6,R.8 to R.11 & : Mr.N.G.R.Prasad forR.14 to R.16 in M/s.Row and Reddyboth the appeals : For others inboth the appeals : No appearance* * *COMMON JUDGMENTELIPE DHARMA RAO, J.These two appeals are filed by the Nationalised Bankschallenging the order passed by a learned single Judge of thisCourt in W.P.No.16609 of 1990, dated 27.7.1999.2. For the sake of convenience, the appellants are referredto as Managements and the party respondents are referred to asworkmen.3. All the workmen in these cases are the ex-servicemen andhaving served in the National Defence Services, they got re-employment in the appellants/Nationalised Banks between 1.7.1983and 17.9.1984. It is an admitted case that the pay of the ex-servicemen is protected on their re-employment, as per theguidelines issued by the Government of India. It is seen from therecords that the Third Bipartite Settlement entered into betweenthe Managements and the workmen, dated 1.8.1979, came to an end on30.6.1983 and the Fourth Bipartite Settlement was made on17.9.1984, but was given retrospective operation from 1.7.1983.All the workmen in both these cases were appointed between1.7.1983 and 17.9.1984. When the Fourth Bipartite Settlement wasimplemented, the basic pay of every Award staff, who was on rollsas on 17.9.1984 was refixed as on 1.7.1983 or the date ofappointment, whichever was later, irrespective of whateveremoluments they had drawn during the interregnum period between1.7.1983 and 17.9.1984. According to the Managements, the basicwages, which the workmen have drawn between the dates of theirappointment and 17.9.1984 was of no consequence. 4. In these circumstances, the impugned circular dated9.10.1985, the Managements have stated that the matter as to how https://hcservices.ecourts.gov.in/hcservices/ the salaries of ex-servicemen who have joined the Banks on orafter July 1, 1983 i.e. the date from which the wage revision ofAward staff in terms of the 4th Bipartite Settlement came intoeffect retrospectively, but before September 17, 1984 i.e. thedate of settlement, has been examined in consultation with theIndian Banks Association and it has been ordered that their paymay be made on the basis of protection of pay drawn in the armedforces or at a stage where the new basic pay plus dearnessallowance corresponds to the basic pay plus dearness allowancedrawn by them in the armed forces, whichever is higher. It hasalso been ordered that if, as a result of such refixation, theirsalary (Pay+DA) is reduced, the recovery of excess payment for theperiod July 1, 1983 to September 17, 1984 be waived and recoveriesfor subsequent period will be made, made necessary in 3-4instalments. 5. This Circular was challenged by the workmen by filingW.P.No.16609 of 1990, praying to issue a Certiorarifed Mandamus,calling for the records relating to the proceedings bearingF.No.12/7/90-SCT(B), dated 16.5.1990 on the file of the Secretaryto Government of India,Ministry of Finance Department of EconomicAffairs (Banking) Division, New Delhi, including the circularNo.47/85, dated 9.10.1985, issued by the Chief General Manager,State Bank of India, Chennai and also the order passed by theBranch Manager, State Bank of India, Asaveerankudikadu,Tiruchirapalli District in his proceedings No.RM IV.15812-12-213,dated 16.3.1990 and quash the same as null and void, consequentlydirecting the Managements to refix the pay of the workmen (i)either to compare the last drawn defence pay of the workmen withthe beginners pay as per Third Settlement or (ii) to inflate thelast drawn defence pay of the workmen also by 60% notionally andcompare with the beginners pay in Bank as per IV Settlement sincethe latter is already inflated by 60% and to pay the petitionerswith retrospective arrears to be paid and other benefits thereto. 6. By the time the workmen in the cases on hand joined theservices of the appellants/Banks, the Third Bipartite Settlementwas in vogue and all the workmen in the cases on hand were givenpay protection. Thereupon, when the Fourth Bipartite settlementcame into operation, their pay was revised and re-fixed, ignoringthe benefits they have already enjoyed in the Third BipartiteSettlement. By the impugned actions of the appellants, since thepay of the workmen has already reached the basic pay of theirrespective scales in the fourth bipartite settlement, it wasordered to grant them one increment. It has been contended by theworkmen that when the pay of their seniors, who were also the ex- https://hcservices.ecourts.gov.in/hcservices/ servicemen and joined prior to them in the Banks, was protectedand were granted more number of increments in the Third BipartiteSettlement, refusing the same benefit for them is illogical andillegal. It has also been contended that when all the employeeshave got 60% hike by way of their pay revision in the fourthbipartite settlement, it is illegal rather ridiculous on the partof the Managements in reducing the pay of these workmen.7. The learned single Judge, has accepted the case of theworkmen and held that the pay scale of the workmen has to beprotected and their pay has to be correspondingly fixed in theFitment of Fourth Bipartite Settlement. Aggrieved by the same,the Banks have come forward to file these appeals8. On the part of the Banks, it has been contended that thepay of all ex-servicemen, who were recruited between 1.7.1983 and17.9.1984, was fixed at a stage in the corresponding category asper the Third Bipartite Settlement and when the terms of theFourth Bipartite Settlement was announced, the pay of the Ex-servicemen was also protected in such a way that the last drawnpay of the ex-servicemen drawn during their service in the defenceservices, was taken into consideration and pay was fitted in thecorresponding category as admissible in the Fourth BipartiteSettlement; that for instance, the first petitioner in the writpetition viz. S.Subramanin was drawing a pay of Rs.500/= in thedefence services and when he was appointed in the Bank, his lastdrawn pay of Rs.500/= was protected, by fitting him in the scaleof Rs.515/=, which was the basic pay as per the Third BipartiteSettlement and when the Fourth Bipartite Settlement wasintroduced, the pay of Rs.500/=, which was last drawn pay in thedefence services was taken into consideration and his pay wasfixed at Rs.520/=, thereby protecting his last drawn pay in thedefence services. By submitting these particulars, theappellants/Banks would contend that the contention of the workmenthat the fitment according to the Fourth Bipartite Settlementcorresponding to a pay of Rs.515/= was Rs.820/= and therefore,their pay has to be fixed accordingly, cannot be adhered to. Ithas also been strongly contended on behalf of the Banks that theemployees in the cases on hand, being the ex-servicemen arealready receiving pension for their services in the Defence andgranting the relief, as has been sought for on their part, wouldamount to according duel benefits for them, besides beingillogical and illegal.9. It is contended on behalf of the employees that byindicating a particular scale of pay at the time of appointment, a https://hcservices.ecourts.gov.in/hcservices/ right is conferred on them to get a corresponding higher scale ofpay as and when there is revision of the scale of pay. Thespecific case of the appellants/Banks is that the intention of theGovernment is protection related to pay and not to a scale of pay. 10. On a careful perusal of the entire materials placed onrecord, we are able to see that the apparent intention of theGovernment was to ensure that the ex-servicemen at the time oftheir employment in the public sector banks do not get an amountas pay lesser than what they were drawing while in defenceservice.It is seen that the scale of pay on the basis of theThird Bipartite Settlement applicable to the clerical cadre, towhich most of the workmen were appointed, was Rs.325-20-405-25-455-30-545-35-580-40-660-45-750-50-800-60-1160 and afterretrospective operation of the Fourth Bipartite Settlement, thescale was revised to Rs.520-30-580-35-685-45-820-55-930-60-990-65-1055-70-1195-85-1280-95-1660. Admittedly, the pay of the workmenin the cases on hand, was taken into consideration and the samewas also protected by granting suitable increments to them, whilefixing their pay as per the Third Bipartite Settlement. Now, itis contended that their pay fixed as per the Third BipartiteSettlement should be taken into consideration for correspondingfixation of their pay in the IV Bipartite Settlement. 11. In these circumstances, the question that arises forconsideration is whether the scale of pay of the workmen is to beprotected, as has been contended by them and as has been acceptedby the learned single Judge?12. Many things have been argued on behalf of the workmen bythe learned counsel appearing on their behalf. But, it is to bementioned that same question fell for the consideration of theHonourable Apex Court in STATE BANK OF INDIA AND OTHERS vs.K.P.SUBBAIAH AND OTHERS [(2003) 11 SCC 646], wherein theHonourable Apex Court, while dismissing the appeals of theemployees and allowing the appeals of the Bank has held:"In service jurisprudence the expressions "pay" and"pay scale" are conceptually different connotations.Pay is essentially a consideration for the servicesrendered by an employe and is the remuneration whichis payable to him. Remuneration is the recurringpayment for services rendered during the tenure ofemployment. Pay and salary are necessarily notinterchangeable concepts. Their meanings varydepending upon the provisions providing for them." https://hcservices.ecourts.gov.in/hcservices/ "Public services comprise different grades and,therefore, different pay scales are provided fordifferent grades. The pay of an employee is in thatbackground fixed with reference to a pay scale. Thisis necessary to be done because the pay of an employedoes not remain static. An employe starts with aparticular pay which is commonly known as initial payand the periodical increases obtained by him arecommonly known as increments. When the highest pointis reached, the employee concerned becomes entitled towhat is known as ceiling pay. It is, therefore, agraded upward revision. Each stage in the scale iscommonly referred to as basic pay. The emolumentswhich an employee gets is not only the basic pay at aparticular stage, but also the additional amounts towhich he is entitled as allowances e.g. DA etc.Therefore, when a question of pay protection comes,the basic feature is that the fitment or fixation ofpay in a particular scale must be such as to ensurethat the total emoluments are not reduced..""The fixation of pay scales is essentially a functionof the executive. They are closely interlined withevaluation of duties and responsibilities attached tothe posts and the pay scales are normally linked withconclusions arrived at by expert bodies like the PayCommission. Ordinarily, a pay structure is evolvedkeeping in mind several factors, for example (i)method of recruitment, (ii) level at which recruitmentis made, (iii) the hierarchy of service in a givencadre, (iv) minimum educational/technicalqualifications required, (v) avenue of promotion, (vi)the nature of duties and responsibilities, (vii) thehorizontal and vertical relativities with similarjobs, (viii) public dealings, (ix) satisfaction level,and (x) the employer's capacity to pay etc. Such acarefully evolved pay structure ought not to beordinarily disturbed as it may upset the balance andcause unavoidable ripples in other cadres as well. Inother words, the degrees of skill, strain or work,experience involved, training required, responsibilityundertaken, mental and physical requirements,disagreeableness of tasks, hazard attendant on workand fatigue involved are some of the relevant factorswhich go into the process of fixing the pay scale.""One thing is clear from various documents based onrecord that the intention as reflected in the policy https://hcservices.ecourts.gov.in/hcservices/ of the Government of India was to protect the lastpay drawn of the ex-servicemen concerned in the armedforces. For the purpose of fixation of pay of ex-servicemen re-employed in the public sector banks,protection was to be given to total emoluments i.e.pay plus DA (instead of only pay) last drawn beforetheir retirement from the armed forces. Perforce, ascale of pay was to be fixed. It stands to logic thatthe employer while fixing pay has to fix it at a levelof pay which would ensure compliance with therequirement that it is not less than the last paydrawn." "There was no intention to protect any particularscale of pay. That being the position, the demand ofa corresponding pay scale has no rationale. The HighCourt was, therefore, clearly in error in holding thatthe scale of pay was the determinative factor. Thedirection that while refixing the pay and DA the totalpay fixed when the petitioner entered into the Bank'sservice has to be protected within the correspondingscale of pay, cannot be maintained and isindefensible." "Strictly speaking, there is no fitment to aparticular scale as contended by the employees. Thefitment into a particular scale has to be consideredin the background of the policy decision to ensure thepayment of an amount not less than the last pay drawn.In that sense, it cannot be said that there was anyfitment to a particular scale to attract thecorresponding scale of pay in terms of the subsequentsettlement." (emphasis supplied)13. This judgment of the Honourable Apex Court is thestraight answer to the contentions raised by the employees inthese cases also. Since admittedly, there was no loss ofemoluments to the workmen, on their joining the appellant Banksand that their pay was well protected and as per the abovejudgment of the Honourable Apex Court, there was no protectionregarding any particular scale of pay, applying the above judgmentof the Honourable Apex Court, the claim of the workmen needs to berejected.14. Further more, in the latest judgment, in S.C.CHANDRA ANDOTHERS vs. STATE OF JHARKHAND AND OTHERS [(2007) 8 SCC 279], theHonourable Apex Court has held: https://hcservices.ecourts.gov.in/hcservices/ "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."15. While coming to the contention of the discriminationpleaded on the part of the employees, citing the example of oneMr.A.Soosai Prakasam (Ex-serviceman), Roll No.33302 of theNarikkudi branch of the Indian Overseas Bank, in whose case hisrequest for refixation of his pay with reference to the guidelinesexisting at the time of his appointment, since the said SoosaiPrakasam has not been made a party to these proceedings, we haveno say in this regard.16. At this juncture, it is apt to quote a judgment of theHonourable Apex Court in M/s.VISHAL PROPERTIES PVT. LTD. vs. STATEOF U.P. & OTHERS [2007 (7) SUPREME 432], the Honourable Apex Courthas held:"Article 14 is not meant to perpetuate an illegality; itprovides for positive equality and not negativeequality. The authorities may have acted in an irregularmanner in case of some others. That does not confer anylegal right on the appellant to claim a similarbenefit."17. In this judgment, the judgment in STATE OF KERALA vs.K.PRASAD & ANOTHER (JT 2007 (9) SC 140) has been relied on,wherein it has been held:"Dealing with such pleas at some length, this Court inChandigarh Administration and Another V. Jagjit Singhand Another, has held that if the order in favour of theother person is found to be contrary to law or notwarranted in the facts and circumstances of his case, itis obvious that such illegal or unwarranted order cannotbe made the basis of issuing a writ compelling theauthority to repeat the illegality or to pass anotherunwarranted order. The extraordinary and discretionarypower of the High Court under Article 226 cannot beexercised for such a purpose. This position in law iswell settled by a catena of decisions of this Court(see: Secretary, Jaipur Development Authority, Jaipur V.Daulat Mal Jain and others [(1997) 1 SCC 35] and EktaShakti Foundation V. Govt. of NCT of Delhi. It would, https://hcservices.ecourts.gov.in/hcservices/ thus, suffice to say that an order made in favour of aperson in violation of the prescribed procedure cannotform a legal premise for any other person to claimparity with the said illegal or irregular order. Ajudicial forum cannot be used to perpetuate theillegalities."For all the above discussions, these appeals filed by theBanks deserve to be allowed and accordingly, both these appealsare allowed, setting aside the order of the learned single Judge.No costs. Consequently, connected Miscellaneous Petitions areclosed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarRaoToThe Secretary to Government of India,Ministry of Finance,Department of Economic Affairs(Banking) Division, New Delhi.+1cc to M/s.Row & Reddy, Advocate Sr 37488+2ccs to M/s.T.S.Gopalan & Co., Advocates Sr 37372, 37273MG (CO)km/13.8. W.A.Nos.2252/99 & 2584 of 2003