S.C.Kandasamy v. The Government of Tamil Nadu

22324/S12/2008-1 dated 26.09.2008 and quash the same anddirect the 2nd and 3rd respondent herein to revise and re-fix thepetitioner scale of pay on par with other "C" grade supervisorsworking in the 3rd respondent sugar mill, enabling the petitioners toreceive the scale of pay and allowance as that of the holders ofother "C" Category employees with effect from 1.1.1990.W.P.Nos.2272 to 2281/09 Certiorarified Mandamus, calling for the records leading to theimpugned order of the 2nd respondent in RC No.22324/SL2/2008-3 dt26.9.2008 and quash the same and consequently direct the 2nd and 3drespondents herein to revise and refix the petitioners scale of payon par with the other "C" Category Supervisory staff working in thethird respondent Sugar Mills, for the period from 1.1.1990 to2.2.1994 and 1.1.1990 to 22.7.98 enabling the petitioner to receivethe scale of pay and allowances as that of the holders of the othersaid "C" Category supervisory staff with effect from 1.1.1990 thedate on which the 2nd respondent implemented the courage of the postheld by the petitioner and consequently revise and refix the scale ofpay in supervisory Grade "A" from 3.2.1994 and 23.07.1998 on wards.W.P.No.s.

9542, 9544, 9563, 9565 to 9567, 9569, 17126, 17127, 17131,17134, 17135, 17140, 17141, 17143 to 17145, 17155., 17157, 17158,17160, 17162 to 17165 of 2009:Certiorarified Mandamus, calling for the records leading to theimpugned order of the second respondent in R.C.22324/SL2/2008 dated.19.11.2008, R.C.22324/SL2/2008 dated.08.12.2008 https://hcservices.ecourts.gov.in/hcservices/ R.C.22324/SL2/2008 dated.19.11.2008R.C.22324/SL2/2008 dated.22.12.2008R.C.22324/SL2/2008 dated.22.12.2008R.C.22324/SL2/2008 dated.19.11.2008R.C.22324/SL2/2008 dated.22.12.2008R.C.22324/SL2/2008 dated.22.12.2008R.C.22324/SL2/2008 dated.19.11.2008R.C.22324/SL2/2008 dated.19.11.2008R.C.22324/SL2/2008 dated.08.12.2008R.C.22324/SL2/2008 dated.22.12.2008R.C.22324/SL2/2008 dated.22.12.2008R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.19.11.2008R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009R.C.22324/SL2/2008 dated.17.02.2009and quash the same and consequently direct the second and third and Fourth respondents herein to revise and refix the petitioner's scaleof pay on par with the other "C" Category Supervisory staff workingin the Fourth Respondent Sugar Mills enabling the petitioner toreceive the scale of pay and allowances as that of the holders of theother said "C" Category supervisory staff with effect from thepetitioner's date of joining in Supervisory "C" Grade.W.P.No.9551/09, 955, 17150 of 2009 Certiorarified Mandamus calling for the records leading to theimpugned order of the second respondent in R.C.22324/SL2/2008 dated19.11.2008, R.C. No.22324/SL2/2008 dated 19.11.2008, R.C.No.22324/SL2/2008 dated 8.12.2008 and quash the same andconsequently direct the second and third Respondents herein torevise and refix the petitioners scale of pay applicable to "B"category Supervisory staff working in the Third Respondent SugarMills enabling the petitioner to receive the scale of pay andallowances applicable and payable to "B" category supervisory staffunder the common cadre system with effect from the petitioners dateof joining in Supervisory "B" Grade.W.P. No.17139/09:Certiorarified Mandamus, calling for the records leading to theimpugned order of the Second Respondent in RC.No.22324/SL2/2008 dated22.12.2008 and quash the same and consequently direct the SecondThird and Fourth respondents herein to revise and refix the https://hcservices.ecourts.gov.in/hcservices/ petitioner scale of pay applicable to B Category Supervisory staffworking in the Fourth Respondent Sugar Mills enabling the petitionerto receive the scale of pay and allowances applicable and payable to"B" Category supervisory staff under the Common Cadre System witheffect from the petitioner dated Joining of in Supervisory "B" grade.

For Petitioners inW.P.Nos.25895 to 25905, 27497to 27972, 28827 to 28852 of2008, 2270 to 2287, 9542 to9569 and 17126 to 17166 of2009:Mr.T.V.Ramanujam, SCfor T.V.KrishnamachariFor Petitioners in W.P.Nos.26216 to 26220 of 2008:Mr.G.Rajan For Respondents 1 and 2 inall Writ Petitions: Mrs. Malarvizhi Udhyakumar, Special Govt. PleaderFor 3rd respondent in all the Writ Petitions: Mrs.G.ThilakavathiCOMMON ORDERThe petitioners in these writ petitions are working in variousCo-operative Sugar Mills in the State of Tamil Nadu. They are workingeither as Cane Development Assistants, Superintendents, Draughts Men, Pan In-charge, Store Keepers, Junior Engineers, InstrumentSupervisors, Lab Chemists, Technical Assistants, Cane OfficeManagers, Foremen or Head Time Keepers. Admittedly, these posts fallunder Supervisory "C" Category. As such, they cannot be transferredfrom one Co-operative Sugar Mill to another. The Government of TamilNadu also had felt the difficulties in transferring the peoplewithin the organizations from one Co-operative Sugar Mill to anotherCo-operative Sugar Mill.

The Government, therefore, considered thatit would be desirable to have a more mobile system, in which peoplecould be transferred from one Co-operative Sugar Mill to another, which according to the Government would achieve efficiency inadministration. Since the Co-operative Sugar Mills are functioningunder the over all control of the Director of Sugar, the Governmentconsulted this matter with him. The Director of Sugar requested the Government to issue necessary orders for creation of common cadreservices for the posts above the level of supervisory "C" Grade inrespect of employees working in Co-operative Sugar Mills includingthe Public Sector Sugar Mills and he further suggested that he may beauthorized to frame necessary rules and regulations for appointments, transfers, initiation of disciplinary action, etc. On consideringthe said suggestions made by the Director of Sugar, the Governmentissued G.O.Ms.866 Industries Department, dated 25.07.1984, directing https://hcservices.ecourts.gov.in/hcservices/ as follows:-"3.

The Government have carefully examined the proposals of the Director of Sugar and they pass the following orders:-(a) The Second and Third level officers working in a/the Co-operative Sugar Mills including the Public Sector Sugar Mills may betransferred from one organization to another. (b) The Director of Sugar is authorized to frame necessaryrules and regulations for appointment, transfer, etc. of the secondand third level officers of the Co-operative Sugar Mills includingthe Public Sector Sugar Mills, and(c) For appointment and transfer of lower level staff in the Sugar Mills, the Director of Sugar is requested to take necessaryaction to form necessary rules in the case of Co-operative SpinningMills.4. The Director of Sugar is requested to take immediate actionwith reference to orders in Para 3 above and to ensure that all theformalities are completed within 40 days and a report sent to the Government.

"2. Based on the above Government Order, the Director of Sugar byhis proceedings in Rc.No.23941/84/C1, dated 16.10.1984, directed the Chief Executives of Co-operative Sugar Mills in the State of TamilNadu to frame regulations as suggested under the relevant SpecialBye-Laws relating to the service conditions of the employees of theCo-operative Sugar Mills. It was further directed that the saidregulations would deal with transfers in the case of employees of theCo-operative and Public Sector Sugar Mills in the cadre of Supervisory "C" Grade and other categories under second wage boardrecommendations other than the officers, who come under the commoncadre services. On receiving the suggestions from the Sugar Millsand in pursuance of G.O.Ms.866, the Commissioner of Sugar by hisproceedings in RC.No.25185/C3/89, dated 27.12.1989 directed toinclude the following categories of employees also under the commoncadre services viz., I. CANE DEPARTMENT:-(a) CANE OFFICERS possessing B.Sc.,(Agri.)/M.Sc.,(Agri.)/ M.Sc.,(Sugarcane)/M.Sc., (Agronomy) or equivalent with 2 years experiencein Sugar Mills or 3 years experience in Government Service.

(b) CANE OFFICERS possessing B.Sc.,(Agri.)/M.Sc.,(Agri.)/M.Sc., (Sugarcane)/M.Sc., (Agronomy) or equivalent but withoutexperience and Graduates (who are already in service) possessingqualification such as B.Sc., (Botany), B.A. Degree and alreadyworking as Assistant Cane Officers. https://hcservices.ecourts.gov.in/hcservices/ II. ENGINEERING DEPARTMENT:-(a) SHIFT ENGINEERS/ASSISTANT ENGINEERS (Mechanical) (MechanicalEngineer, Graduates/Diploma in Mechanical Engineering) with specifiedexperience. (b) ELECTRICAL ENGINEER (Graduate Engineers/Diploma in Electrical Engineering with experience as specified).(c) CIVIL ENGINEER(Graduate Engineers/diploma in CivilEngineering with specified experience).(d) MECHANICAL ENGINEER AND CIVIL SUPERVISORS (Diploma in Mechanical/Electrical/Civil Engineering) (it is proposed to adopt amore rational designation, nomenclature for Engineering posts).III. MANUFACTURING DEPARTMENT:-(a) SHIFT CHEMIST/MANUFACTURING CHEMIST AND LAB INCHARGE B.E.,(Chemical or B.Tech) or B.Sc., Degree plus ANSI/ADSI.(b) MANUFACTURING CHEMIST/LAB INCHARGE (B.Sc., Chemistry) butwithout ANSI/ADSI.(c) Lab Chemist with B.Sc., (Chemistry).(d) MANUFACTURING SUPERVISORS with Diploma in Sugar Technology.3.

It should be noticed that Lab Chemists with B.Sc.,(Chemistry), Manufacturing Supervisors and Mechanical Supervisorswould fall within "C" Grade. As per the said directions issued bythe Commissioner of Sugar for these "C" Grade employees’ Scale of Pay was also revised. The petitioners, who also fall within the Supervisory "C" category have not been given the benefit of commoncadre service and consequentially their pay was not revised. As aresult "C"Grade employees, who were brought under the common cadreservices as per G.O.Ms.866, Industries Department 25.07.1984, werepaid higher salary as per revision; whereas the petitioners, whoseservices were not brought under common cadre, were paid lessersalary. Their grievance is that the principle of equal pay for equalwork is not followed and as a result, there is a gross violation of Article 14 of the Constitution of India. The petitioners wouldfurther contend that one Mrs.R.Chandra, who was working asdraughtswoman in Supervisory ‘C’ Category filed Writ Petition inW.P.No.15192 of 2000 before this Court seeking a direction torevise and refix her scale of pay on par with the other 'C' CategorySupervisors in the Engineering Department of Dharmapuri Co-operativeSugar Mills with effect from 01.01.1990, on which date the said Millimplemented common cadre services of ''C" Category employees.

In the https://hcservices.ecourts.gov.in/hcservices/ said writ petition, the contentions, which have been raised in thepresent writ petitions, were made. By order dated 22.04.2003, thiscourt allowed the writ petition as prayed for. Challenging the same, the Special Officer of Dharmapuri Co-operative Sugar Mills preferredan appeal in W.A.No.4074 of 2004. A Division Bench of this Court byorder dated 12.07.2007 dismissed the writ petition and directed the Management to revise the pay scale of Mrs.R.Chandra on par with theother Supervisory 'C' Category employees, who were brought under thecommon cadre services and the said judgment of the Division Bench hasbecome final. In pursuance of the judgment passed by the DivisionBench in the writ appeal, the Government issued G.O.Ms.No.123, dated30.05.2008 thereby refixing the pay of Mrs.R.Chandra, draughtswomanon par with the scale of pay applicable to erstwhile common cadreemployees of supervisory 'C' Category with effect from 01.01.1995instead of 01.01.1990.4.

At this juncture, it needs to be mentioned that even beforethe said order was passed by the Government, the common cadreservices itself was abolished by the Government by Government Order(Standing) No.834, Industries (MI.C.2) Department, dated 03.12.1997.In view of the abolition, there was a threat of refixing the scale ofpay of the erstwhile common cadre employees, as they were drawingprior to the introduction of common cadre services. Therefore, the Government issued another Government Order (Standing) No.302,Industries (M.I.C.2) Department, dated 25.08.2000 giving protectionto the scale of pay which the erstwhile common cadre employees weredrawing in the common cadre services. Thus, enhanced pay paid tothe supervisory 'C' category employees, who were brought under thecommon cadre services continued to get the very same scale of payeven after the abolition of the common cadre services. 5.

Some of the petitioners herein, who felt that they are alsoentitled for parity in pay as it was done in the case of Mrs.R.Chandra, made several representations to the Government. But, the Government did not consider the same. A Batch of 9 WritPetitions were filed by some of the petitioners in W.P.Nos.17896 to17904 of 2008 before this Court for appropriate relief. This Courtby order dated 28.07.2008 directed the Commissioner of Sugar todispose of the representations of the petitioners therein dated02.11.2007 in accordance with law. Similarly another batch of 4 writpetitions in W.P.No.18219 to 18222 of 2008 were filed wherein alsosimilar directions were issued by this Court on 30.07.2008. It couldbe seen that yet another batch of writ petitions were filed by 9persons in W.P.No.16781 to 16886 of 2008 wherein also, similardirections were issued.6. Based on the above orders, the Commissioner of Sugar passedindividual orders on each representation made by the respectivepetitioners therein thereby declining to revise the pay scale of thesupervisory 'C' Grade employees, who were not brought under the https://hcservices.ecourts.gov.in/hcservices/ common cadre services.

It was stated in all such orders that therelief granted to Mrs.R.Chandra was confined only to her and the samecannot be made applicable to the other persons, who are similarlyplaced, like Mrs.R.Chandra. It was also mentioned in the orders, thatthe revised scale of pay could be awarded only to those 'C' GradeSupervisory Staff, who were brought under the common cadre servicesand not for the persons like the petitioners in the writ petitions, who were not brought under the common cadre services. Aggrieved bysuch denial, the petitioners have come forward with these writpetitions seeking equal pay for equal work.7. The following are the common grounds raised in all these writpetitions: (i) The act of the respondents in declining to revise the scaleof pay of the petitioners on par with the supervisory 'C' Gradeemployees, who were originally brought under the common cadreservices, amounts to discrimination and violative of Article 14 ofthe Constitution of India.

(ii) The petitioners, who are in the supervisory 'C' Grade arepaid far less, than the supervisory 'C' Grade employees, who werebrought under the common cadre services. The difference is equivalentto the basic of these Supervisory 'C' Grade employees. Thus, therefusal to revise the scale of pay of the petitioners on par withothers is highly arbitrary and unreasonable. (iii) When the Government directed all 'C' Grade employees to bebrought under the common cadre services as per G.O.Ms.866, it isbeyond jurisdiction or the Sugar Mills to create a classificationamong the supervisory 'C' Grade employees, so as to bring some ofsuch supervisory 'C' Grade employees into common cadre services inorder to get the revised enhanced scale of pay, leaving behind theothers like, the petitioners outside the common cadre services and todeprive them of the monetary benefits. (iv) The principles stated in Mrs.R.Chandra's case cited supra, by the learned single Judge of this Court, which was confirmed by the Division Bench, squarely applies to the petitioners' cases and it isnot proper for the respondents to state that the principle statedtherein is confined only to Mrs.R.Chandra and not for thepetitioners, who are in no manner different in status from Mrs.R.Chandra.8.

A common counter has been filed by the 2nd respondent, the Commissioner of Sugar contending as follows:-(i) The writ petitions are not maintainable, since employment isa contract between employer Co-operative Sugar Mill and employees ofthe Sugar Mills, which could be questioned and challenged only in https://hcservices.ecourts.gov.in/hcservices/ Labour Court or Industrial Tribunal. (ii) In G.O.Ms.866, the Government directed to create commoncadre services only in respect of first, second and third levelofficers working in Co-operative Sugar Mills including Public SectorSugar Mills. The petitioners did not fall within the first threelevel of officers. They did not even fall within the fourth levelof Staff. Instead, they fall below the fourth level Staff. Thesestaff, who fall below the fourth level have been categorized assupervisory A, B and C category employees, for whom Wage Board scaleof pay was implemented as per the settlement reached under Section 18(1) of the Industrial Disputes Act, 1947.

(iii) In pursuance of G.O.Ms.No.866 Industries Department, dated25.07.1984, only 12 posts were identified by the Commissioner of Sugar for enforcement of the said common cadre services in the Co-operative and Public Sector Sugar Mills, in which the posts of thepetitioners were not included. Thus, the petitioners were neverbrought under the common cadre services. Subsequently, by issuanceof G.O (Standing) No.834 Industries (MI.C.2) Department , dated03.12.1997 with a view to decentralize the control, the common cadreservices was abolished, however, revision of pay earlier paid whilethey were in common cadre services was not disturbed. (iv) As per the Wage Board settlement, the staff were to retireat the age of 60 ; whereas as per the common cadre services, theretirement age was 58 years. Many of the employees, who were in thesupervisory 'C' Grade having enjoyed the Wage Board settlement andremained in services up to 60 years of their age, cannot be allowedto claim that their pay scale should be revised on par withemployees covered under the common cadre services.

If it is allowed, it will create anomaly and confusion. 9. An Union of employees known as "Tamil Nadu Anaithu KooturavuMatrum Podhuturai Sarkarai Alaigalin Paniyalar Peravai raised an Industrial Dispute in I.D.No.48 of 2008 before the IndustrialTribunal, Chennai for revision of scale of pay of the employees onpar with the erstwhile common cadre employees. By award dated21.02.2002, the Industrial Tribunal stated that either pay of theemployees should be enhanced on par with the erstwhile common cadreemployees or that the pay of the erstwhile common cadre employeesshould be reduced so as to maintain parity. Based on the same, aCommittee was constituted and the pay of the erstwhile common cadreemployees were reduced on par with the wage board employees. It isstated that challenging the award of the Industrial Tribunal, WritPetitions in W.P.Nos.19361, 19411 of 2003, 2325 of 2004, 1837 of2006, 16586 of 2000 and 32770 of 2003 were filed before this Courtand the same are pending. https://hcservices.ecourts.gov.in/hcservices/

Only in terms of the said power the Government consideredto constitute common cadre services among employees working in theCo-operative Sugar Mills in the State of Tamil Nadu. Beforeconstituting common cadre services, the Government, as could be seenin Government Order, consulted the matter with the Director of Sugar, who is in over all control of all the Co-operative Sugar Mills in the State. Though, the Director in principle agreed for the constitutionof such common cadre services, he suggested that only those officers, https://hcservices.ecourts.gov.in/hcservices/ who are working in the Co-operative Sugar Mills above thesupervisory 'C' category alone could be brought under the commoncadre services. However, the Government, obviously, did not agreewith the said suggestion. Instead, the Government issuedG.O.Ms.No.866 constituting common cadre services for all second andthird level officers working in the Co-operative Sugar Millsincluding Public Sector Sugar Mils.

However, the Government Orderdoes not list-out the posts which fall under second and third levelof officers in the Sugar Mills. Despite repeated queries made on thelearned Special Government Pleader appearing for the respondents 1and 2 and the learned counsel appearing for the 3rd respondent by this Court, they were not in a position to inform this Court as to whatare all the posts, which were in the second and third level ofofficers posts prior to the constitution of the common cadreservices. But, in the counter affidavit, it is stated that there were3 classes of officers known as " first, Second and third levelofficers" and there were also " fourth level staff". It is furtherstated in the counter that the staff, who fell below the level staffwere categorized into three as supervisory 'A', 'B' and 'C' categoryemployees. Further, it is tacitly admitted in the counter that thesepetitioners fall in supervisory 'C' category.

It is the strenuouscontention of the learned counsel for the respondents that 'C'category employees, since did not fall within the second level andthird level of officers, were not brought under the common cadreservices as per the notification issued by the Government by way of Government Order. The fallacy of the said argument could easily bedemonstrated. Admittedly, Mechanical Civil Supervisors, Lab Chemistswith B.Sc., (Chemistry), Manufacturing Supervisor with diploma in Sugar Technology are all supervisory 'C' category employees. Regarding this, there is no controversy at all. Indisputably, as perthe proceedings of the Director of Sugar in Rc.23941/84/C1, dated16.10.1984, these three categories of employes were brought into thecommon cadre services. If the contention of the respondents that thesupervisory 'C' Category employees did not fall within either thesecond level or third level officers is to be accepted, then theyhave to explain as to how these three supervisory 'C' categoryemployees alone were brought under the common cadre services. Therefore, the contention of the respondents that the supervisory 'C'Category employees are not entitled to be brought under the commoncadre services is only to be rejected.

But, the second provisoto the said sub-section states that within such period as may beprescribed by notice in writing to the competent authority, anemployee may intimate his option for not becoming a member of suchcommon cadre services. In the case on hand, after the issuance of the Government Order notifying all supervisory 'C' category employees ascommon cadre employees, there was no time prescribed by the Government to enable the employees to exercise their option toexpress their inclination to come within the common cadre services. It is not the case of the respondents that the petitioners expressedtheir willingness to come within the common cadre services. From thespate of litigations, which these petitioners have been prosecutingbefore this court, it would go to show that they have all along beenexpressing their willingness to get the benefits of the common cadreservices. It is, therefore, crystal clear that as per sub-section 2of Section 75 of the Act, as soon as G.O.Ms.866 was issued, all theemployees in the supervisory 'C' category have automatically becomethe members of the common cadre services. Therefore, they areentitled for the benefits of the common cadre services.

The petitioners herein, feelingaggrieved by the vast anomaly in the pay structure between them andthe common cadre supervisory 'C' category employees, started makingrepresentations. When they were all under consideration, the Government again abolished the common cadre services. Therefore, thefight for treating the petitioners as common cadre employees couldnot succeed. Thereafter, they started demanding pay parity. That hasalso not been given. Now, the only reason stated by the respondentsis that since these petitioners, who are in supervisory 'C' categorywere never brought under the common cadre services, they cannotexpect parity in pay structure. Similar grounds were taken beforethis Court in W.P.No.15192 of 2000 by the Commissioner of Sugar andthe Special Officer, Dharmapuri Co-operative Sugar Mills stating that Mrs.R.Chandra was a draughts-woman in supervisory 'C' category andshe was never brought under the common cadre services and therefore, she was not entitled for pay parity with the erstwhile common cadresupervisory 'C' category employees, but, they were rejected by thelearned Single Judge.

Indisputably, appeal preferred against the sameby the Special Officer, Dharmapuri Co-operative Sugar Mills inW.A.No.4074 of 2004 was also dismissed by judgment dated 12.07.2007by a Division Bench of this Court. The Division Bench has extensivelygone into all the grounds in the writ appeal and has negatived allsuch contentions.

We are unable toappreciate the reason given by the appellant management for denyingthe benefits to the first respondent/workman on par with the othercategories falling under the common cadre services. When theequivalent posts of Mechanical, Electrical and Civil Supervisors areincluded in the common cadre services as per the Government Order andcirculars issued by the Commissioner of Sugars referred to supra, thedenial on the ground that she is a lady and her performance is notsatisfactory is not a valid reason. Therefore, we agree with theorder passed by the learned single Judge, which requires nointerference. "22. The opinion expressed by the Division Bench squarelyapplies to all the supervisory 'C' category employees like, thepetitioners in the Sugar Mills. When some of the posts ofsupervisory 'C' category have been brought under the common cadreservices by the Sugar Mills and they were paid more salary as perthe revision, it is beyond jurisdiction of the management of thesugar mills to refuse to treat the other supervisory 'C' Gradeemployees alone as employees of common cadre services so as to give https://hcservices.ecourts.gov.in/hcservices/ them parity in the matter of pay structure.

At the risk ofrepetition, it should be mentioned that under sub-section 2 of Section 75 of the Act irrespective of absence of any order passed bythe management of sugar mills, formally declaring the posts ofsupervisory 'C' Grade employees as common cadre employees, automatically by operation of law all the supervisory 'C' categoryemployees have become employees of common cadre services.23. The judgment of the Division Bench of this Court in Mrs.R.Chandra's case has become final and the same has also beenimplemented by the Government as per G.O.Ms.123 Industries Department(M.I.C.2) Department, dated 30.05.2008. When that is the position, Ihardly find any reason as to why the other draughtsman, who areworking like, Mrs.R.Chandra should alone be denied the revision ofpay, as it was done in the case of the said Mrs.R.Chandra. In theorders passed on the representations made by some of the petitioners,a curious stand has been taken that the decision in Mrs.R.Chandra'scase is confined only to Mrs.R.Chandra and not for other supervisory'C' Grade employees . This contention cannot be accepted at all, asdenial of benefits, which were extended to Mrs.R.Chandra would surelybe violative of Article 14 of the Constitution of India.

24. In State of Kerala v. B.Renjith Kumar and others, 2008 (2)CLT 881, while dealing with the principle of equal pay for equalwork, the Hon'ble Supreme Court, on considering the similaritybetween the Presiding Officers of Industrial Tribunal and the District Judges held that except the source of recruitment, there isno other difference such as Educational and Professionalqualifications, duties and functions etc. Therefore, there is noreason to treat the Presiding Officers of the Industrial Tribunaldifferently to deny the scale of pay payable to the District Judges. 25. In Union of India v. Dineshan K.K. (2008) 1 SCC 586, againwhile dealing with the principle "equal pay for equal work", the Hon'ble Supreme Court went to the extent of declaring that theprinciple of equal pay for equal work has assumed the status offundamental rights under Article 14 of the Constitution of India, wherein also the Hon'ble Supreme Court compared the EducationalQualification, nature of duties etc. and held that equal pay forequal work should be paid.26.

In Special Officer, Salem Co-op. Sugar Mills MatriculationHigher Secondary School v. All Teachers Front, 2008 (5) MLJ 302, ithas been held that the Matriculation School Teachers are entitled forequal pay like, the teachers who are working in the GovernmentSchools. 27. There are innumerable cases from the Hon'ble Supreme Courtunderlying the said principle. I do not propose to list-out suchjudgments as the same would only add to the length of this order. In https://hcservices.ecourts.gov.in/hcservices/ the cases on hand, it is not at all contended that there is anyreasonable bench-mark to classify the supervisory 'C' Gradeemployees, who were originally brought under the common cadreservices and the other employees like, the petitioner who are also inthe supervisory 'C' category. No where in the counter affidavitsnor during the arguments advanced on behalf of the respondents, ithas been stated that going by the identifiable difference from thenature of the services, qualifications, etc. such classification wasmade.

When there is no such intelligible differentia pointed out tocreate the classification, it has to be certainly held that theclassification as it is sought to be made by the management of sugarmills is only unconstitutional. As held by the Hon'ble Supreme Courtin several judgments, more particularly, in the judgments citedsupra, the petitioners though were never treated by the management ofthe sugar mills as common cadre employees, since by operation of law, they automatically became common cadre employees and on theabolition of the same they have been restored to their original cadreof services, still in view of the pay protection given to theerstwhile common cadre employees, the petitioners are also entitledfor such revision of pay and consequential protection also.28. In the affidavit filed in W.P.No.25895 of 2008, it has beendemonstrated that the petitioner P.Sivamani, Cane DevelopmentAssistant is drawing Rs.8710/- whereas one Mr.J.Pugazhendi, Electrical Supervisor, who is in the supervisory 'C' Grade but, erstwhile common cadre employee, is drawing Rs.16,979/- Similarly, one Mr.M.Ganesan, Lab Chemist, erstwhile common cadre and supervisory'C' category employee, is drawing Rs.14,974/- There is no explanationregarding the vast pay difference, in the counter affidavit filed bythe respondents.

This is an example to demonstrate as to how some ofthe employees, who are in the supervisory 'C' category have beendiscriminated in an arbitrary manner by the sugar mills. Theprinciple of equal pay for equal work forms part of the fundamentalrights of the employees. Therefore, it is high time for this Court toextend its long-arm to rescue these petitioners from thediscrimination meted out to them by allowing all these writpetitions.29. Now, the next question arises, that while ordering therespondents to revise the pay scale of the petitioners to bringparity in scale of pay with the erstwhile supervisory 'C' categoryemployees, whether such benefits could be given from the date of Government Order or not.30. In the matter of Mrs.R.Chandra, the Government as perG.O.ms.123 has given the benefits not from 01.01.1990 but, from01.01.1995 which is the date on which the orders were issued by the Commissioner of Sugar treating the draughtsman as employees of commoncadre services, though, Government Order was issued on 01.01.1990.It is submitted by the Commissioner of Sugar that the financial https://hcservices.ecourts.gov.in/hcservices/ condition of all these sugar mills are in a very bad shape.

It isfurther stated in the counter affidavit that there are 17 sugar millsincurring a cumulative loss to the tune of Rs.1652 crores. Totalnumber of supervisory 'C' category employees is 275 and an averagearrears to be paid would amount to Rs.6 to 7 lakhs per head. Thiswould result in an additional total expenditure of Rs.1856.25 lakhs. Making this statement in para 24 of the counter affidavit, it iscontended by the respondents that it will not be viable for the co-operative movement to burden the mills to pay so much of amount toits employees. Having regard to all the above facts andcircumstances, in my considered opinion, it would be in the interestof justice to direct the co-operative mills to give effect to therevision of pay structure and however to pay arrears at least fromthe month of September 2008 since the orders rejecting the claim ofthe petitioners were passed on 17.09.2008 by the Commissioner of Sugar.31.

At the same time, the contention of the respondents is thatunder the common cadre services, the retirement age of the employeeswas 60 years; whereas as per the Wage Board settlement, theretirement age is only 58 years and therefore, those who have enjoyedthe benefit of being in service till the age of 60 cannot be allowedto get the benefit of common cadre service. I find force in thiscontention.32. Having enjoyed the benefit of two years by continuing inservices beyond 58 years, the employees cannot have anyjustification to retain the salary drawn during the said two years, if they want the benefits of common cadre pay revision. Therefore, while calculating the arrears in respect of retired employees at theage of 60 years, salary drawn by them for 2 years beyond 58 yearsshould be given deduction. Similarly, if any of the petitioners isnow working beyond 58 years of age should immediately be retired andas stated above, the salary drawn by him beyond 58 years of ageshould be given due deduction out of the arrears to be paid to him.

However, the directions to be given in these writ petitions shall beconfined only to the petitioners since they only have come forwardseeking the benefits of common cadre services. The employees insupervisory 'C' category, who have not claimed to be treated ascommon cadre employees, shall be treated to have exercised theiroption under Section 75 of the Act to remain in non-common cadreservices and so they will not be entitled for the benefits of thecommon cadre services.33. Regarding the objection raised in respect of maintainabilityof the writ petition reference may be usefully made to the judgmentof Larger Bench of this Court in K.Marappan v. The Deputy Registrarof Co-operative Societies, Namakkal Circle, Namakkal 636 001 andothers 2006 (4) CTC 689 wherein, this Court has held that though aCo-operative Society may not be a State or State Instrumentality in https://hcservices.ecourts.gov.in/hcservices/ terms of Article 12 of the Constitution , still writ petition againstthe said society is maintainable, in certain circumstances like, violation of any statutory provision or violation of fundamentalrights.

The propositions evolved in Marappan’s case cited supra, aremainly by applying the various tests propounded in Ajay Hasia v.Khalid, (1981 (1) SCC 722). The Larger Bench of this Court in Marappan's case held that the Co-operative society governed by the Tamil Nadu Co-operative Societies Act does not fall under any one ofthe tests and therefore, such a society is neither a State or a StateInstrumentality in terms of Article 12 of the Constitution of India. It should not be forgotten that what was under consideration beforethe Constitution Bench was as to whether a Co-operative Societygoverned by the Tamil Nadu Co-operative Societies Act is either aState or a State Instrumentality under the Act. The ConstitutionBench had no occasion to deal with a Co-operative Sugar Mill whichenjoys monopoly status. 34. The test No.3 in Ajay Hasia's case is in respect of themonopoly status enjoyed by a co-operative society wherein the Hon'bleSupreme Court has held that in the event of the society enjoyingmonopoly status certainly it will fall within Article 12 of the Constitution of India so as to be amenable to the writ jurisdictionof this Court.

35. Indisputably, the Co-operative Sugar Mills in the State of Tamil Nadu are enjoying monopoly status in the matter in as much asthe area of operation of each sugar mill is prescribed by the Commissioner of Sugar and the farmers, who own lands within thejurisdiction of a particular mill have to necessarily sell thesugarcane produced only to the said mill and they cannot carry toany other mill for the purpose of crushing or selling. When suchmonopoly status is enjoyed by the Tamil Nadu Co-operative Sugar Millsin the State of Tamil Nadu, certainly, it has to be held that theyfall within the ambit of third test in Ajay Hasia's case. Therefore, these sugar mills are amenable to the writ jurisdiction of this Courtand they fall within the ambit of Article 12 of the Constitution of India as State Instrumentalities. Assuming that these co-operativesugar mills do not fall within the ambit of Article 12 of the Constitution of India, still going by the nature of the relief soughtfor in these writ petitions, I have to hold that the writ petitionsare maintainable since what is sought to be enforced is the rightfundamentally guaranteed under Article 14 and 12 of the Constitutionof India.36.

Subsequent to Marappan's case a Full Bench of this Court in Ananda Sayanam, T.K. v. The Joint Registrar, Co-operative Societies, Vellore (2007(5) CTC 1) had an occasion to consider Marappan’s caseand also to consider the question as to whether suspension of anemployee of a Co-operative Bank would amount to invasion of the rightguaranteed under Article 21 of the Constitution of India so as to https://hcservices.ecourts.gov.in/hcservices/ enforce the same under the writ jurisdiction. The Full Bench, afterreferring to Marappan’s case and also various judgments of the Hon’ble Supreme Court, ultimately in paragraph Nos.14 and 16 has heldas follows:-“14. Every illegal order of suspension or terminationwill not ipso facto amount to violation of Article 21. Butthere may be certain circumstances, as in a case ofexclusion of an employee affected by HIV AIDS or anemployee who has been rendered immobile by an accident orcases where the rights of huge number of employees areinvolved or where their very existence is jeopardized, where the employee may justifiably invoke Article 21 of the Constitution and seek protection by filing a writ petition.

But every case of suspension or deprivation of wages for aperiod or termination will not entitle the employee of aCo-operative Society to move the Writ Court and contendthat the right of protection under Article 21 has beenviolated. The employees have adequate statutory protectionin law. 16. For every alleged or imagined invasion of hisrights, an employee of a Co-operative Society cannot movethe Writ Court on the ground that his rights under Article21 have been infringed. The effect of the Supreme Courtcases cited in Marappan's case (cited supra) and thepropositions set down in Marappan's case (cited supra)cannot be set at naught merely by mentioning Article 21,even if the order is illegal. 37. In the case on hand, since large number of employees claimthat they have been discriminated in the matter of scale of pay, asheld by the Full Bench, since the rights of huge number of membersare involved, the writ petition should be held to be maintainable.