P.Cristal Gnanadoss v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.08.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.9518 of 2007inO.A.No.651 of 2002P.Cristal Gnanadoss ... PetitionerVs.1.The State of Tamil Nadu Rep. By the Commissioner and Secretary to Government Forest Department Fort St.George, Chennai – 600 009.2.The Conservator of Forests Thirunelveli – N.G.O.Colony, Palayankottai. 3.The District Forest Officer Kanyakumari District, Nagercoil.... RespondentsPRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.651 of 2002from the file of Tamil Nadu Administrative Tribunal with a prayer tocall for the records and set aside the order dated 09.10.2001 inproceedings Na.Ka.No.4569/2001/P1 passed by the District ForestOfficer, Kanyakumari and consequently to restore the order dated29.11.1998 order passed by the Forest Range Officer, Srivilliputhur,granting personal pay on promotion to the applicant with effect from01.09.1998.For Petitioner:Mr.G.JustinFor Respondents: Mr.S.N.Kribanandan Special Government Pleader (Forests) https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe Original Application in O.A.No.651 of 2002 before theTamil Nadu Administrative Tribunal (hereinafter referred to as theTribunal) is now writ petition in W.P.No.9518 of 2007 before thisCourt. 2.Heard the submissions made by Mr.G.Justin, learnedcounsel for the petitioner and Mr.S.N.Kribanandan, learned SpecialGovernment Pleader (Forests) the respondents. 3.The petitioner entered service of the respondents asForest Watcher on 02.07.1984. He was promoted as Forest Guard on16.09.1993. While he was working as a Forest Guard, he was grantedpersonal pay of 5% of basic pay as per G.O.Ms.No.664, Finance (PayCell) Department, dated 24.08.1992. Accordingly, his pay was fixedby the District Forest Officer, the third respondent herein, videproceedings dated 19.04.1993 The petitioner was drawing Rs.41/- aspersonal pay with effect from 01.08.1992 as per G.O.Ms.No.664referred to above. 4.Later, by an order dated 21.11.1998, the personal pay ofthe petitioner was enhanced to Rs.162/- with effect from 01.09.1998,based on G.O.Ms.No.497, Finance (Pay Cell) Department, dated15.09.1998. 5.While so, the impugned order dated 09.10.2001 was passedby the third respondent, cancelling the benefit of personal paygranted to the petitioner. 6.The impugned order, while cancelling the special paygranted to the petitioner, states that the scale of pay of ForestGuard was Rs.825-15-900-20-1200 and that the said scale of pay is notcovered by the very first G.O.Ms.No.664, Finance (Pay Cell)Department dated 24.08.1992. Hence, the very fixation is bad andtherefore, further enhancement could not arise when there was arevision in the scale. 7.According to the learned Special Government Pleader, thecategories of staff in the following scales of pay alone are entitledto personal pay."(i)All categories of staff in the pre revisedscales of pay at Rs.475 – 775 moving over to therevised scale of pay of Rs.775 – 1080.(ii)All categories of staff in the pre revisedscale of pay of Rs.610 – 1075 moving over to therevised scale of pay of Rs.950 – 1500 or Rs.975 – 1660. https://hcservices.ecourts.gov.in/hcservices/ (iii)All categories of staff in the prerevised scale of pay of Rs.705 – 1230 moving over tothe revised scale of pay of Rs.1200-2040 and (iv)All categories of staff in the pre revisedscale of pay of Rs.905 – 1545 moving over to therevised scale of pay of Rs.1600 – 2660."8.Citing the aforesaid prescription of scale of pay, thelearned Special Government Pleader for the respondents submits thatwhile the categories of staff receiving Rs.775 – 1080 and thecategories of staff receiving Rs.950 – 1500 are entitled to specialpay, the petitioner, who received Rs.825-1200 scale is not entitledto special pay. 9.The learned counsel for the petitioner contends that whenthe Forest Watcher receiving Rs.775 – 1080 is given the personal payand the person holding higher post than the Forest Guard who are inreceipt of Rs.950-1500 are given the personal pay, the respondentsare not justified in depriving personal pay to the categories who arereceiving scale of pay in between the scales of pay. The learnedcounsel also submits that the very purpose of G.O.Ms.No.664 isdefeated if such an interpretation is placed on the said GovernmentOrder, as the very purpose of the Government Order was to grantpersonal pay while declining to revise further the scales of pay. 10.The learned counsel for the petitioner cites a decisionof this Court in W.P.Nos.28505 and 28611 of 2006 dated 26.06.2008,wherein, on an identical situation, this Court set aside the impugnedorder, by cancelling the earlier order, granting the special pay byfollowing the judgment of a Division Bench of this Court dated10.03.2006 made in W.P.Nos.20156 and 13143 of 2000. Paragraph No.12of the said Division Bench judgment was extracted in the judgmentdated 26.06.2008 and the same is reproduced here-under:"12.From a reading of the counter affidavit, theG.O. and the letter dated 3.8.1999 which is impugned,one factor is very clear. The respondents have nottaken into consideration that paragraph 4 of the G.O.which clearly makes 5% personal pay applicable to allpay scales specified therein and it includes thegrades lower and higher to that of the petitioners.From the chart set out in paragraph 8 above, theanomaly is further amplified and explained. HeadClerk of District Court, Sheristadar of Sub-Court andSuperintendent in the scale of pay of Rs.905-1545,having the benefit of revised scale of pay of Rs.1600-2660, are getting the benefit of 5% personal pay onbasic pay, whereas, Head Clerk, Deputy Nazir of Munsif https://hcservices.ecourts.gov.in/hcservices/ Court, Copyist, Superintendent, Record Keeper, HeadClerk of Sub-Court in the scale of pay of Rs.780-1385and revised scale of pay of Rs.1400-2600, are deniedthe benefit of 5% personal pay. There is no reasonwhy the petitioners' category of Head Clerk and DeputyNazir of Munsif Court or Head Clerk of Sub-Courtshould be denied the benefit of 5% personal pay whencompared with that of Head Clerk of District Court andSheristadar of Sub-Court. It has been stated thatseveral scales of pay have been omitted including thescale of pay of Rs.1600-2660. On going through theG.O., the emphasis is that it will not apply to anypromotion beyond the scale of pay of Rs.1600-2660.Therefore, if the petitioners also fall in any one ofthe categories of the various scales of pay, then theywill be entitled to claim the benefit of the G.O.Further, in the impugned order, it is stated that interms of Government Letter No.97374/PC/99, Finance,25.3.1999, 5% personal pay as on 1.9.1998 is notapplicable to the categories such as Head Clerk,Deputy Nazir, District Munsif Court, Record Keeper andTranslator, District Court and Head Clerk of Sub-Courton the ground that they moved to the level ofSuperintendents only from the scale of pay of Rs.780-1,385 to Rs.1,600-2,600. However, there is no reasongiven why Head Clerks of District Courts, Sheristadarsof Sub-Court and Superintendents falling underSl.No.IV of the chart extracted in paragraph 9 above,in the pre-revised scale of pay of Rs.905-1,545 andthe revised scale of Rs.1,600-2,660 were given thebenefit of 5% personal pay. Viewed from this anglealso, it is clear that the omission if at all can beonly by oversight. In any event, merely stating inthe counter affidavit and the impugned letter that thepetitioners have been consciously omitted, does notappear to reason, in view of the obvious anomaly thatis observed by this omission. Such a view taken bythe respondents will clearly amount to discriminationunder Article 14 of the Constitution of India. Thecontention of the first respondent shows total non-application of mind and non-consideration of the G.O.in its proper perspective. The impugned letterobviously has been passed on a misconception andmisreading of the said G.O." https://hcservices.ecourts.gov.in/hcservices/

11.In view of same and as the issue involved in the presentcase is fully covered by the said decision, the impugned order isquashed and the writ petition is allowed. No costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarTKTo1.The Commissioner and Secretary to Government Forest Department Fort St.George, Chennai – 600 009.2.The Conservator of Forests Thirunelveli – N.G.O.Colony, Palayankottai. 3.The District Forest Officer Kanyakumari District, Nagercoil.4. The Registrar,Central Administrative Tribunal,Chennai.+ 1 CC to Mr.G.Justin,Advocate,SR.41260+ 1 CC to Government Pleader,SR.40929W.P.No.9518 of 2007NSM(CO)EM/2.9.09