G.Shanmugasundaram... v. The Secretary to Government Animal Husbandry and Fisheries Secretariat, Chennai – 9

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.09.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.8378 of 2007G.Shanmugasundaram... PetitionerVs.

The Secretary to Government Animal Husbandry and Fisheries Secretariat, Chennai – 9.

The Commissioner and Director of Fisheries Chennai – 6. .. Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.5313 of 2002from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records pertaining to the impugned order of the first respondent passed in letter No.16067/FS.II/99 dated 11.06.2002 and to set aside the same and consequently directing the respondents to fix the pay of the applicant on par with Marine Foreman, who got promotion in the year 1974, which is equivalent post to the post of Senior Mechanic with all monetary and attendant benefits with effect from 1974.For Petitioner :Mr.Veera Kathiravan For Respondents :Mrs.C.K.VishnupriyaAdditional Government Pleader

O R D E RThe Original Application in O.A.No.5313 of 2002 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. Heard the submissions made by the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents. https://hcservices.ecourts.gov.in/hcservices/

The petitioner was appointed as Electrician by an order dated 18.11.1970 of the Assistant Director of Fisheries (Fish MealPlant), Mandapam under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules. Later on, he was regularised in the said post. Further, he was promoted as Senior Mechanic (Trawler) by the Director of Fisheries vide his order dated 07.11.1974. He was sent on deputation to the Tamil Nadu Fisheries Development CorporationLimited, when the Trawlers were transferred to the said Corporationon 01.12.1978. On 08.11.1984, he was granted Selection Grade in the post of Senior Mechanic (Trawler). He was promoted to the higher post, namely Junior Engineer, in the Corporation. While so, he was reverted back to the parent Department by an order dated 08.04.1988,pursuant to the closure of the Tamil Nadu Fisheries DevelopmentCorporation Limited.

On reversion to the parent Department, instead of posting him as Senior Mechanic, the post which he held at the time of deputation, he was posted by an order dated 09.02.1989 to the lower post of Electrician, which admittedly carried lesser scale of pay. He made a representation dated 02.03.1989 to the second respondent to post him as Foreman (Marine), which is equivalent to the post of Senior Mechanic, since the post of Senior Mechanic was not available.

The petitioner was in receipt of Rs.1640-2900 scale as Senior Mechanic (Trawler) and on being reverted to the parentDepartment, he was placed in Rs.825-1200 scale as Electrician.

In these circumstances, the petitioner filed Writ petitionin W.P.No.1450 of 1989 before this Court contending that he was an employee of the Tamil Nadu Fisheries Development Corporation Limitedand that therefore, he should not be reverted to the parentDepartment. The said writ petition was dismissed on 21.09.1989.Left with no other alternative, he joined duty in the lower post of Electrician on 15.09.1991.

While so, the first respondent passed an order inG.O.Ms.No.223, Animal Husbandry and Fisheries (FS.II) Department, dated 23.07.1993, relaxing Rule 2 and Rule 5 of the Tamil NaduFisheries Subordinate Service Rules and directed the second respondent to appoint the petitioner as Foreman (Marine) in the Fisheries Department, with effect from the date of issuance of the order by the second respondent appointing him as Foreman (Marine).Based on the said Government Order, the petitioner was appointed as Foreman (Marine) with effect from 12.10.1993.

The petitioner made a representation dated 07.01.1999 to the first respondent to appoint him as Foreman (Marine) with effect https://hcservices.ecourts.gov.in/hcservices/ from the date of reversion to the parent Department instead of from12.10.1993. However, his request was declined by the first respondent in the impugned order dated 11.06.2002.

The petitioner filed Original Application in O.A.No.5313of 2002 (W.P.No.8378 of 2007) to quash the aforesaid order of the first respondent and for consequential direction to the respondents, to fix his pay on par with Foreman (Marine), from the date on which he was posted to the equivalent post of Senior Mechanic in 1974, with all monetary and attendant benefits.

The learned counsel for the petitioner contends that since the petitioner was a Senior Mechanic at the time, when he wassent on deputation to the Tamil Nadu Fisheries DevelopmentCorporation Limited, on reversion to the parent Department from the Corporation, he should have been posted to the earlier post which heheld at the time of deputation. The learned counsel for the petitioner further submits that if the said post was not available due to the non-availability of the Trawlers, the respondents should have accommodated him in an equivalent post and should have protected his pay.

On the other hand, the learned Additional GovernmentPleader seeks to sustain the impugned order by reiterating the reasons adduced in the impugned order. 12.I have considered the submissions made on either side. Iam of the considered view that the submissions made by the learned counsel for the petitioner are well founded. Admittedly, the petitioner held the post of Senior Mechanic (Trawler) at the time when he was sent on deputation to Foreign services. Once he is reverted to the parent Department, he should have been posted to the earlier position. Even if it is not possible, the respondents should have protected his scale of pay. The learned counsel for the petitioner is correct in his submissions that since it was not his fault, the petitioner should not be made to loose the salary which heis entitled to.

The learned counsel for the petitioner also submits that others, who were similarly situated in the Department and his juniors are in receipt of the higher pay and that therefore, the petitioner should not be placed in the scale of Electrician. In fact, the first respondent conceded the request of the petitioner and issuedG.O.Ms.No.223. That is, the petitioner was posted as Foreman (Marine)as the post of Senior Mechanic was not available and since both the post carries the same scale of pay. However, while he was posted as Foreman (Marine) it was stated in the said G.O.Ms.No.223 that he would be posted from the date on which the second respondent would pass an order appointing him as Foreman (Marine). The petitioner requested to appoint him as Foreman (Marine) from the date on which https://hcservices.ecourts.gov.in/hcservices/ he was holding the post of Senior Mechanic, otherwise, he would have to loss monetarily, for no fault on his part. But the first respondent passed the impugned order refusing to consider the just demand made by the petitioner. The first respondent did not give any reason for not posting him as Foreman (Marine) from the date on which he was holding the post of Senior Mechanic, when the posts of SeniorMechanic and Foreman (Marine) are equivalent posts. Hence, the petitioner is entitled to be posted to the earlier post, which heheld at the time of deputation to Foreign services with pay protection. Reversion to parent Department from Foreign service should not result in reversion from the earlier post to a lower post.

In these circumstances, the impugned order dated11.06.2002 of the first respondent is set aside and the respondents are directed to fix the pay of the petitioner on par with Foreman(Marine) from the date on which he was promoted as Senior Mechanic in1974, with all monetary benefits. The respondents are directed to complete the said exercise within a period of four weeks from the date of receipt of a copy of this order. 15. With the above direction, the writ petition is disposed of. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarTKTo1. The Secretary to Government Animal Husbandry and Fisheries Secretariat, Chennai – 9.2. The Commissioner and Director of Fisheries Chennai – 6.+ One cc to Govt. Pleader CC SR 45098+ One cc to M/s. Veera Kathiravan CC SR 44574W.P.No.8378 of 2007MBS (CO)RH (5.10.09)