N.R.Venkataraman v. The Management of Metropolitan Transport Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:04.12.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION Nos.654 to 658 and 26211 of 2008AND connected miscellaneous petitions.N.R.Venkataraman.. Petitioner in WP.654 of 2008S.Subramanian.. Petitioner in WP.655 of 2008A.Francis.. Petitioner in WP.656 of 2008D.R.Krishnarao.. Petitioner in WP.657 of 2008S.Gururajan.. Petitioner in WP.658 of 2008S.P.Jayakumar.. Petitioner in WP.26211 of 2008vs.The Management ofMetropolitan Transport Corporation Ltd.,Anna Salai, Chennai 600 002... Respondents in all the Wps.Writ Petitions filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Mandamus directing therespondent in all the petitions to fix basic ay and allowances to thepetitoner in each of the petitioners in the time scale of pay ofRs. 8000-275- 13500 as admissible to the post of Assistant Managerfrom the date of post given to the petitoner as Assistant ManagerI/C and also to revise pension based on the re-fixed pay and to payarrears in respct of pay and allowance and terminal benefits andpension etc.For petitioners : Mr.S.T.VaradarajuluFor respondent : Mr.Jayeesh B.DoliaCOMMON ORDERThese writ petitions are filed for direction against therespondent Corporation to fix the basic pay and allowance of thepetitioners in the time scale of pay of Rs.8000-275-13500, as https://hcservices.ecourts.gov.in/hcservices/ admissible to the post of Assistant Manager from the date when thepetitioners were designated as Assistant Manager In-charge and alsoto revise their pension based on such re-fixation.2. The petitioners were appointed as Clerks in the Tamil NaduState Transport Department on 19.01.1963, 22.10.1965, 11.04.1966,19.12.1962, 17.6.1963 and 03.04.1963 respectively. When theTransport Corporations were formed in the year 1972 under theCompanies Act,1956, they were absorbed in Pallavan TransportCorporation. At present, it is functioning as Metropolitan TransportCorporation Chennai Limited. 2(a). From 01.05.1975 onwards, Longevity Pay Scheme wasintroduced. It is stated that the petitioners rendered servicescontinuously for more than 38 years and they were promoted to thepost of Section Officers during the years 1991, 2001, 1992, 1994,1995 and 1993 respectively and the post of Section Officer carriesthe time scale of pay, Rs.4895-180-6155—185-9485 with effect from01.09.1998.2(b). It is the case of the petitioners that the respondent hasnot filled up the post of Assistant Manager, which became vacant dueto superannuation, voluntary retirement, deputation, etc. Thepetitioners were eligible to be promoted as Assistant Managers andthey were in fact posted as Assistant Manager In-charge (Pre-audit),carrying on higher responsibility, which includes passing of billsinvolving huge amounts and in that capacity, the petitioners havebeen working nearly for five years. However, the petitioners havenot been given the scale of pay and allowances admissible to the postof Assistant Manager and are drawing only the salary of SectionOfficer.2(c). It is the case of the petitioners that the post ofAssistant Manager carries the time scale of pay Rs.8000-275-13500 andit also carries allowances as applicable to the State Governmentemployees. It is stated that the petitioners retired onsuperannuation on 31.5.2001, 30.04.2004, 31.5.2005, 31.10.2002,30.09.2003 and 30.06.2001 respectively and they were losing a sum ofRs.2,500/- each per month till the date of retirement. 2(d). It is their case that they were performing and dischargingthe duties of the Assistant Manager (Pre-audit) including the passingwage bills of all workers with higher responsibility. Thepetitioners made representations to the Management on severaloccasions claiming the pay on the basis of 'equal pay for equal work'and in spite of the same no order has been passed and therefore, thepetitioners have filed the above writ petitions for the direction asstated above. https://hcservices.ecourts.gov.in/hcservices/

3. It is the case of the respondent in the counter affidavitthat at the time of retirement the petitioners were working asSection Officers, which is a post of supervisory group and they wereposted as Assistant Manager In-charge temporarily to look after thefunctions of pre-audit section on their willingness and on conditionthat they will not be entitled for any increase in the emoluments andthey would continue to draw the salary of Section Officer. 3(a). It is stated that the petitioners have carried on the workof supervisory group and not in the cadre of Assistant Manager. Forthe supervisory group, the pay is fixed under Longevity Pay Schemecovered under the settlement under Section 12(3) of the IndustrialDisputes Act,1947 and it is only a stop-gap arrangement. It is onlyafter retirement of the petitioners and after receiving all thepensionary and other benefits, the present writ petitions have beenfiled by the petitioners and it is the case of the respondent thatafter retirement there is no employer and employee relationship andtherefore, the question of granting allowance in the cadre ofAssistant Manager does not arise.3(b). It is stated that the post of Assistant Manager is amanagerial post and it can be filled up subject to the availabilityof vacancy and as per the Service Rules it is filled up either bypromotion, transfer or by direct recruitment and the selection ismade by way of promotion on seniority and merit basis by a properlyconstituted Committee and the selection has to be approved by theBoard of the Transport Corporation and it is only after the approval,such promotion is given effect to.3(c). The scale of pay of Assistant Manager is on par with theAssistant Manager in Tamil Nadu State Government and it is notcovered under the Longevity Pay Scheme or the settlement underSection 12(3) of the Industrial Disputes Act,1947. It is only inrespect of the supervisory group, such Longevity Pay Scheme and 12(3)settlement are entertained. Therefore, the claim for payment ofsalary of Assistant Manager to the petitioners cannot be considered.The pay revision applicable to Assistant Manager is not applied tothe petitioners since they were not appointed in the Managerialcadre. Since the petitioners have not protested at the time ofgetting retirement benefits, the present claim made by them after aperiod of seven years cannot be entertained, at this stage.4. It is the case of the learned counsel for the petitionersthat even though the petitioners have retired between 2001 and 2005,they have been constantly making representations about their demandand it is the respondent Management which has not considered theirdemand till time. He would rely upon various judgments tosubstantiate his contention that the petitioners are entitled forequal pay for equal work, viz., https://hcservices.ecourts.gov.in/hcservices/ (i)N.Rajasekaran Nair vs. Secretary to Government, MunicipalAdministration and Water Supply Department, FortSt.George, and another (2006 (2) MLJ 420);(ii)Secretary – cum – Chief Engineer vs. Hari Om Sharma(1998 (5) SCC 587),(iii)Selvaraj vs. Lt.Governor of Island, Port Blair (1998(4) SCC 29); and (iv)Jaswant Singh Vs. Punjab Poultry Field Staff Association(2002 (1) SCC 261).5. On the other hand, it is the contention of Mr.JayeeshB.Dolia, learned counsel appearing for the respondent Corporationthat while it is true that the petitioners were put in charge of thepost of Assistant Manager, it was only on specific condition thatthey will be paid salary in the lower post i.e., Section Officerwhich was accepted by the petitioners. It is also stated thatinasmuch as the post of Assistant Manager is to be filled up bypromotion/transfer on the basis of merit and ability and suchprocedure has not been followed in the case of petitioners, thepetitioners are not entitled to claim salary in the post of AssistantManager. It is stated that the writ petitions are liable to bedismissed for laches, since the petitioners having received thepensionary benefits, have waited for more than seven years for filingthese writ petitions.6. On a reference to the entire factual aspects as mentionedabove, it is clear that even though the petitioners who are retiredhave been making representations repeatedly from 2001 onwards, butthey have not approached the forum for the purpose of ventilatingtheir grievance. It is also not in dispute that they have allreceived the pensionary benefits without any objection. In suchcircumstances, the question to be decided is, as to whether thepetitioners can be directed to be paid the time scale of pay in thepost of Assistant Manager from the date when they were asked toperform the work of Assistant Manager In-charge in Pre-audit Sectionand their pension can be directed to be refixed based on the same.7. In the service certificates issued in respect of thepetitioners by the respondent, in the Column prescribed for the postlast held, it is stated as 'Assistant Manager In-charge/SectionOfficer'. The salary pattern is shown as Rs.4895-180-6155-185-9485,which is admittedly the salary for the post of Section Officer. Itis the case of the respondent that while the post of Section Officeris a supervisory post, the post of Assistant Manager is coming undermanagerial category and therefore, they are different cadres.However, it is the case of the petitioners that they were eligible tobe posted as Assistant Managers in the available vacancies on thedate when they were put In-charge and they were in fact performing https://hcservices.ecourts.gov.in/hcservices/ the functions of Assistant Manager in the managerial capacity, whichfact is not denied by the respondent in the counter affidavit.8. In Jaswant Singh vs. Punjab Poultry Field Staff Associationand others (2002 (1) SCC 261), the Supreme Court has held that evenin cases where persons were not qualified for the next post, but whenthey were discharging the duties of the next post, they are entitledfor the relief, however, restricting it for three years from the dateof the claim. In that case, the appellant in the Supreme Court hadperformed the functions of the post of Chick Sexer, to which he wasnot qualified. The Supreme Court, while holding that the appellantwould not be entitled for promotion to the post of Chick Sexer, buttaking note of the fact that he was performing the duties, held thathe was entitled for the pay and allowances, in the following words: "11. The High Court's decision in Gobind Singh case didnot direct the promotion of Gobind Singh. What was directedwas the payment of salary and allowances of the post ofChick Sexer since Gobind Singh had been discharging theduties of that post. Therefore, while the appellant'spromotion to the post of Chick Sexer cannot be upheld, giventhe fact that the appellant had discharged the duties of aChick Sexer, he was at least entitled to the pay and otherallowances attributable to that post during the period hecarried out such duties.12. We accordingly allow the appeal in part. Whileupholding the order of the High Court, setting aside theorder of the appellant's promotion, we direct the respondentAuthorities to pay the appellant for the period he renderedservice as a Chick Sexer at the scales of pay together withall allowances to which Chick Sexers were entitled at therelevant time. However, this relief is limited to theperiod commencing from three years prior to the filing ofthe suit by the appellant upto the time he continued todischarge duties as a Chick Sexer. All dues in terms ofthis order must be paid to the appellant within a period ofsix months from the date of this judgment after adjustmentof payment already made to the appellant by the respondentauthorities. The appeal is disposed of accordingly withoutany order as to costs."9. When a similar contention viz., promotion was effected as astop-gap arrangement on an undertaking that lower salary would bepaid, was raised, the Supreme Court, by relying upon Section 23 ofthe Indian Contract Act, in Secretary cum Chief Engineer, Chandigarhvs. Hari Om Sharma (AIR 1998 SC 2909) held that there is anentitlement to claim higher salary and denying the same would beopposed to public policy. The relevant portion is as under: https://hcservices.ecourts.gov.in/hcservices/ "8. Learned counsel for the appellant attempted tocontend that when the respondent was promoted in stop-gaparrangement as Junior Engineer-I, he had given anundertaking to the appellant that on the basis of stop-gaparrangement, he would not claim promotion as of right norwould he claim benefit pertaining to that post. Theargument, to say the least, is preposterous. Apart fromthe fact that the Government in its capacity as a modelemployer cannot be permitted to raise such an argument, theundertaking which is said to constitute an agreement betweenthe parties cannot be enforced at law. The respondent beingan employee of the appellant had to break his period ofstagnation although, as we have found earlier, he was theonly person amongst the non-diploma holders available forpromotion to the post of Junior Engineer-I and was,therefore, likely to be considered for promotion in his ownright. All agreement that if a person is promoted to thehigher post or put to officiate on that post or, as in theinstant case, a stop-gap arrangement is made to place him onthe higher post, he would not claim higher salary or otherattendant benefits would be contrary to law and also againstpublic policy. It would, therefore, be unenforceable inview of Section 23 of the Contract Act."10. N.Paul Vasanthakumar,J. by referring to the above saidjudgments of the Supreme Court and also the judgment of DivisionBench of this Court reported in Union of India vs. CentralAdministrative Tribunal (2004 (1) ATJ 24) in N.Rajasekaran Nair vs.Secretary to Government, Municipal Administration and Water SupplyDepartment, Fort St.George and another (2006 (2) MLJ 420),considering the similar circumstances, held as follows:"9. In the decision reported in Selvaraj v. Lt.Governorof Island, Port Blair, (1998 (4) SCC 291) in paras 3 and 4,the Hon'ble Supreme Court held that the pay of higher postif admissible when an employee is looking after duties ofthat post, the employee is entitled to get the higher postpay even though the said post is not to be treated aspromotion.10. In the other judgment cited by the learned counselfor the petitioner which is reported in Jaswant Singh v.Punjab Poultry Field Staff Association, (2002 (1) SCC 261),the Supreme Court held that even if a person promoted isnot qualified to hold the post, but discharged the dutiesin the promotion post, he is entitled to get the pay andallowances admissible to the promotion post. https://hcservices.ecourts.gov.in/hcservices/

11. The above referred judgments of the Supreme Courtare followed by a Division Bench of this Court in thedecision reported in Union of India vs. CentralAdministrative Tribunal (2004 (1) ATJ 24).12. The other objection that the promotion was givenonly as stop-gap arrangement is also answered by theHon'ble Supreme Court in paras 6 and 7 of the decisionreported in Secretary-cum-Chief Engineer vs. Hari Om Sharma(1998 (5) SCC 87). Therefore, the said objection is alsounsustainable.13. The above referred settled position of law revealsthat the respondents are bound to pay salary to thepetitioner for the period for which he worked in the higherpost. Consequently, the difference in pay shall becalculated and paid to the petitioner within a period ofeight weeks from the date of receipt of copy of thisorder."11. On the facts and circumstances of the present cases, it isnot even the case of the respondent that the petitioners were notqualified to be posted as Assistant Managers even if it is stated tobe a stop-gap arrangement. It is also not in dispute that thepetitioners were asked to perform the functions of Assistant Managersin the available vacancies, even though they were put In-charge ofthe posts of Assistant Managers and paid the salary of SectionOfficers. 12. Considering the above said facts and circumstances of thepresent case and taking note of the judicial precedents which arecategorical, the petitioners are entitled for the relief as claimedin these writ petitions. Accordingly, the writ petitions standallowed with direction to the respondent to fix the pay and allowanceof the petitioners in the post of Assistant Manager from the datewhen they were directed to act as Assistant Manager In-charge.However, taking note of the fact that the petitioners have chosen toapproach this Court after seven years of their retirement, I am ofthe view that they are not entitled for the arrears of salary fromthe date when they were made to work as Assistant Manager In-chargetill the date of their retirement, but the petitioners should beconstrued as retired Assistant Managers and their pensionary benefitsshould be fixed from the date of their retirement by treating them asAssistant Managers retired and arrears of pensionary benefits aredirected to be paid to each of the petitioners and such amount shallbe paid by the respondent to the petitioners within a period of eight https://hcservices.ecourts.gov.in/hcservices/ weeks from the date of receipt of copy of this order. The respondentis directed to continue to pay the pensionary benefits as per re-fixation. No costs. Connected miscellaneous petitions are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarKhToThe Management ofMetropolitan Transport Corporation Ltd.,Anna Salai, Chennai 600 002.+ 1 cc to Mr.S.R.Varadarajulu, SR 66450+ 1 cc to Mr.Jayesh B.Dolia, SR 66196 Common Order in W.P.Nos.654 to 658 & 26211/2008RL (CO)RH (18.12.09)