The Tamil Nadu Electricity Board v. The Chairman

Tamil Nadu Electricity Board Engineers Association, Electricity Avenue, Rep. by its General Secretary Mr.G.Balakrishnan, 793, Anna Salai, Chennai 600 002. ..Respondent PRAYER: Appeal against the order of the learned single Judge dated 08.10.2003, passed in W.P.No.572 of 2002, as stated therein. !For Appellants :: Mr.V.Radhakrishnan ^For Respondent :: Mr.A.E.Chelliah, Senior Counsel For Mr.P.Karunakaran :J U D G M E N T THE HONBLE THE CHIEF JUSTICE This writ appeal has been filed against the order of the learned single Judge dated 08.10.2003.

2. Heard learned counsel for the parties and perused the records.

3. The writ petition was filed by an Association of Graduate Engineers in the Tamil Nadu Electricity Board. The dispute is between the Graduate Engineers on the one hand, and the diploma holders, who were appointed as Technical Assistants and Junior Engineers Gr.II, and who can subsequently be promoted as Assistant Engineers if they acquire B.E. Degree or A.M.I.E. through part time course or correspondence studies by internal selection, on the other. It is alleged in paragraph  2 of the affidavit filed in support of the writ petition that the directly recruited Assistant Engineers are seniors, and they were all along drawing a higher pay than the internally selected Assistant Engineers, who are their juniors, in every wage revision. However, now some of the internally selected juniors are getting more pay than the directly recruited Assistant Engineers, who are seniors, and this has happened on account of the wage revision w.e.f. 1.12.1996 providing grant of additional increments on the basis of the number of years service put in the department under Clause 6(4) of the Boards Proceedings in (Permanent) B.P.(FB) No.59 (Secretariat Branch) dated 18.07.19 98. It is alleged that many such directly recruited Assistant Engineers, who are seniors both in the cadre of Assistant Engineers as well as Assistant Executive Engineers are now being given lesser pay than their juniors who were subordinate to them earlier. It is further alleged that the representations of the petitioners have been rejected, and hence the writ petition.

4. In paragraph  4 of the petitioners affidavit several details are given alleging that seniors are now being given less salary than juniors. It is alleged that this violates Article 14 of the Constitution of India.

5. A counter affidavit was filed in the writ petition by the respondents. In Paragraph  3 of the same it is alleged that the internal selection is resorted to not only for the post of Assistant Engineers category but also categories such as Junior Assistant, Typist, Steno Typist, Assessor and Technical Assistant, etc. In all these cases the period of service rendered in previous posts is counted for pension in the new post, and the pay drawn in the previous post is protected in the new post. Such internally selected persons by virtue of their earlier service in the Board draw more pay than the directly recruited employees, as their pay has been protected. It is alleged that this is not an anomaly in any real sense. It is further alleged that the pay protection is the benefit consciously allowed by the Board to its workmen, who were recruited from other posts through internal selection, and this is governed by the orders issued in (Per) B.P. (F.B.) No.95, (Secretariat Branch) dated 02.11.1985 covering all the employees of the Board.

6. In Paragraph  5 of the counter affidavit it is averred that when workmen were recruited to another post internally, there were occasions, at the time of their appointment, when such internally selected and appointed persons were drawing higher pay in the previous post itself than the minimum scale of pay applicable for the post to which that person was appointed through such internal selection, and in all such cases their pay in the previous post was protected in the new post. The position in the Government of India and in the Government of Tamil Nadu service is similar.

7. In paragraph 6 of the counter affidavit it is alleged that in the 1996 Wage Revision Orders, it was ordered that a benefit of one increment for the first 7 years of regular completed service, and thereafter, one increment for every 10 years of service, as service weightage shall be given after fitment in the new scale of pay. By virtue of this provision the employees with longer years of service get more number of increments as service weightage benefit than those with less number of years of service.

8. In paragraph 7 of the counter affidavit Clauses 6(3) and 6(4) of the Boards Proceedings in (Permanent) B.P.(FB) No.59 (Secretariat Branch) dated 18.07.1998 were extracted, and the same are as follows:- Clause 6(3) : Where a junior opts to come over to the revised scale from a date subsequent to 1st December 1996 and happens to get more pay than that of his senior by way of fitment benefit, then the pay of the senior shall be stepped up to the level of the pay of the junior with effect from the date from which the junior draws such higher pay. The above provision will not apply to those covered, under para 5( ii) above. The applicability of the above provision is subject to the condition that: (i)the senior was drawing pay higher than or equal to the pay of the junior in the pre-revised scales of pay from time to time. (ii)if the pay and the date of increment of a senior and junior are identical in the pre-revised scale of pay and if the senior opts for revised scale with effect from 01.12.1996 whereas the junior foregoes the wage revision benefit and opts for revised scale with effect from the date of next increment or subsequent increments after 1.12.1996 and consequently the junior happens to get higher pay than the senior, such anomaly should not be rectified since the senior also could have opted for the same date as the junior and availed the fitment benefit, as that of his junior. However, the anomaly may be set right, by permitting the senior to opt for revised scale from the same date of next increment or subsequent increment after 1.12.1996 as opted by the junior subject to the condition, that, the wage revision arrear already drawn by the senior with effect from 1.12.1996 is refunded in one lumpsum. Clause 6(4): Senior and Junior mentioned in this regulation shall be only those covered by sanction of same number of service weightage increments.

9. The petitioner-Association requested the respondents to annul clause 6(4) quoted above, but this was not accepted by the respondents because the above rule is the same for both workmen and officers.

10. In paragraph 9 of the counter affidavit it is stated that there were instances where on appointment itself, an internally recruited Assistant Engineer may be getting higher pay than the directly recruited senior Assistant Engineer, as in the case of one Thiru S. Mohankumar, Assistant Executive Engineer, details of which are given in paragraph 10 of the counter affidavit. On the date of his appointment as Assistant Engineer his pay in the previous post was protected by grant of personal pay. Hence, it is alleged that this was the existing practice even earlier, and was not on account of wage revision w.e.f.01.12.1996 as alleged by the petitioner-Association.

11. In paragraph  12 of the counter affidavit it is alleged that the anomaly of junior drawing more pay already existed in the case of an Assistant Engineer/Non-Degree Holder promoted as Assistant Executive Engineer, who was promoted step by step (hierarchical promotion), and would be drawing higher pay than the senior Degree Holders/Direct Recruitees with lesser number of years of service. Hence, it is alleged that there is no anomaly. It is alleged that Seniority of an employee is a mere relation to the category to which he belongs, whereas the Service Weightage allowed in the wage revision of 1996 is taking into account the total service of an employee in all categories put together from the date of his joining the Board.

12. In paragraph 14 of the counter it is alleged that the representations of the petitioner-Association were examined in detail, but were rejected by the Board. Therefore, the grievance alleged by the petitioner Association that its representations were not considered is not correct.

13. The learned single Judge by his order dated 08.10.2003 allowed the writ petition holding that the principle that a senior must not get less pay than his junior must be followed. In our opinion, there is no such absolute principle that a senior can never get less pay than his junior. It can happen that a junior may get higher pay than his senior, as he may put in more number of years of service than his senior. In our opinion there is no anomaly or illegality in this. There is also no violation of Article 14 of the Constitution of India. Hence, in our considered opinion, the order of the learned single Judge is not correct and deserves to be set aside.

14. We are of the considered view that the impugned Clause 6(4) of the Boards Proceedings in (Permanent) B.P.(FB) No.59 (Secretariat Branch) dated 18.07.1998 is not illegal or unconstitutional. It may be mentioned that there is always a presumption in favour of the constitutional validity of a statute or rule, and an attempt should be made to uphold the same instead of readily striking it down.

15. In B.R.Enterprises Vs. State of U.P. and Others, (1999) 9 SCC 700 (vide paragraph 81) the Supreme Court observed:- It is also well settled that first attempt should be made by the Courts to uphold the charged provision and not to invalidate it merely because one of the possible interpretations leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted.

16. It may be mentioned that fixing of pay scales and salaries is a complicated matter and it is for the executive authority to decide, as they only have the expertise in this matter. Ordinarily, it is not proper for the Courts to interfere in these types of matters, as Courts do not have such enterprise.

17. In Union of India Vs. P.V.Hariharan, J.T. 1997 (3) 569 the Supreme Court observed that the Tribunals are often interfering with pay scales without proper reason and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendation of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below will put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission goes into the problem at great depth and it is the proper authority to decide upon the issue. Very often the doctrine of equal pay for equal work is also being misunderstood and misapplied freely revising and enhancing the pay scales across the board.

18. In our opinion, fixation of pay scales, salaries, etc., are purely executive functions and it is not proper for this Court to interfere in this executive domain. In Rama. Muthuramalingam Vs. The Deputy Superintendent of Police, Mannargudi & Others, 2004(5) CTC 554 a Division Bench of this Court discussed the philosophy of judicial restraint in great detail and we reiterate the views expressed therein. There are several considerations which have to be taken into account by the executive while fixing the pay scales, salaries, etc., and the Courts should realise that only the executive authorities have the requisite expertise in such matters, and not the Courts. Interference by the Courts in the fixation of pay scales, salaries, etc., can only result in chaos and confusion, and can have adverse and undesirable repercussions.

19. There is nothing in the constitution or in any statutory rule that a junior cannot get a higher salary than a senior, particularly, when the junior has put in a large number of years of service, as compared to the senior, who may be a new recruit. In any event, these are matters to be decided by the executive, and it is not proper for this Court to encroach upon in this field, as has been done by the learned single Judge. The Courts must exercise judicial restraint and not interfere in such matters. The three organs of the State - the Legislature, the Executive, and the Judiciary have their own broad spheres of operation, and it is ordinarily not proper for one organ to encroach into the domain of another.

20. It is well settled that in policy matters this Court has a very limited scope of interference vide Union of India vs. International Trading Co., J.T. 2003 (4) SC 549 (para 17), State of Punjab vs. Ram Lubhaya, 1998 (4) SCC 117, Krishnan Kakkanth vs. Government of Kerala 1 997 (9) SCC 495, G.B. Mahajan vs. Jalgaon Municipal Council AIR 1991 SC 1153, Federation of Railway Officers Association vs. Union of India, 2003 (4) SCC 289. 21. In Union of India vs. International Trading Co. 2003 (51) ALR 598 (vide paragraph 17) the Supreme Court observed: The Courts as observed in G.P. Mahajan v. Jalgaon Municipal Council, AIR 1994 SC 988 are kept out of the lush field of administration policy except where the policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates, or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Court' s view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism. As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6 th Edition), there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must therefore distinguish between proper course and improper abuse of power. Nor is the test the Court's own standard of reasonableness as it might conceive it in a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise.

22. In Tamil Nadu Education Dept., Ministerial and General Subordinate Services Association vs. State of Tamil Nadu and others, AIR 1980 SC 379, the Supreme Court while examining the scope of interference by the Courts in public policy held that the Court cannot strike down a circular / Government Order or a policy merely because there is a variation or contradiction. The Court observed: Life is sometimes contradiction and even inconsistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factors fouls. In that decision the Court also observed:  Once, the principle is found to be rational, the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a martyr and however, unhappy we be to see the seniors of yesterdays becoming the juniors of today, this is an area where, absent arbitrariness and irrationality, the Court has to adopt a hands-off policy.

23. In Maharashtra State Board of Secondary and High Secondary Education and others vs. Paritosh Bhupesh Kumarsheth, AIR 1984 SC 1543, the Supreme Court considered the scope of judicial review in a case of policy decision and held as under:- The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the sub-ordinate regulation making body. It may be a wise policy, which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy but is even a foolish one, and that it will not really serve to effectuate the purpose of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for any interference by the Courts unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or it being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.