High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 28..11..2007Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 33476 of 20061.R.Kannan2.K.Palanisamy3.S.Sundaramohan4.R.Balasubramanian5.A.Alphones6.S.Sadasivam7.R.Muthukrishnan8.Senni Sivanandam9.S.Ramalingam10.R.K.Durai.. Petitioners vs.Tamil Nadu Electricity Boardrep. by its Board of DirectorsNo. 800 Anna SalaiChennai – 2.. RespondentPetition filed under Article 226 of the Constitution of Indiaseeking for issue of writ of Certiorarified Mandamus calling for therecords from the respondent, quash the order bearing (Per) B.P. (FB) No.58 (Secretariat Branch) dated 14.11.2005 in so far as failing to givethe fitment benefit and service weightage and consequently direct therespondent to revise the salary / wages of the petitioners with effectfrom 01.12.2000 by giving fitment benefit and service weightage andarrive at the pension of the petitioners based on their revised salary /wages on the date of retirement, pay the arrears as given to persons whoretired from 01.12.2002 onwards.For Petitioner : Mr. Balan HaridassFor Respondent : Mr. M.VaidyanathanORDERI have heard the arguments of Mr. Balan Haridass, learned counselappearing for the petitioner and Mr. M.Vaidyanathan, learned counselappearing for the second respondent and have perused the records. https://hcservices.ecourts.gov.in/hcservices/

2.The ten petitioners were all retired from service afterholding various posts as found in paragraph 4 of the affidavit somewherebetween 31.3.2001 and 31.7.2002. In this petition, the petitioners arechallenging the proceedings of the respondent Tamil Nadu ElectricityBoard [for short, 'Board'] made in (Per) B.P. (FB) No. 58 (SecretariatBranch) dated 14.11.2005 insofar as it fails to give fitment benefit andservice weightage and for a direction to the respondent to revise thesalary / wages of the petitioners with effect from 01.12.2000 by givingfitment benefit and service weightage and arrive at the pension of thepetitioners based on their revised salary / wages on the date ofretirement, pay the arrears as given to persons who retired from01.12.2002 onwards.3.The proceedings of the Board dated 14.11.2005 were issued inthe context where the wage revision was effected with effect from01.12.2002. It was stated in the earlier Board proceedings dated16.10.2005 that though the revision of wages was due from 01.12.2000,the wages would be revised only from 01.12.2002 and for the interveningperiod from 01.12.2000 to 30.11.2002, a consolidated amount of Rs.2400/-was to be paid at the rate of Rs.100/- per month. It was also orderedthat in respect of the employees, who retired / resigned / expiredbetween 01.12.2000 and 30.11.2002, a consolidated amount would be paidproportionately. Thereafter, the Board received representations fromemployees, who retired between 01.12.2000 and 30.11.2002 for increasedpension and retirement benefits as the revision of wages was due intheir cases also from 01.12.2000. But they were not covered by theorders of revision of wages which was given effect to from 01.12.2002.Considering their representations, the Board issued the order dated14.11.2005, which is impugned in this writ petition and the followingpassage found in the impugned order is extracted below: “.... The Tamil Nadu Electricity Board has examined therepresentations and has decided to allow a specialconcession to the pensioners who retired from the serviceof the Board during 01.12.2000 to 30.11.2002.Accordingly, the following orders are issued:-1)The pension of the employees who retired / voluntarilyretired / died while in service and eligible forfamily pension during the period from 01.12.2000 to30.11.2002 be increased in the following manner:a)The pay last drawn by them may be increased by 6%subject to a minimum increase of Rs.600/- in thetotal of pay and Dearness Allowance drawn on thedate of retirement and thus increase in the basicpay on the date of retirement or voluntaryretirement or on the date of death shall be foundout. This increased amount should be treated aspersonal pay. https://hcservices.ecourts.gov.in/hcservices/ b)The pay + personal pay so found out shall betaken for the purpose of calculation of pension.The increased pension shall be arrived in such away that the increase in pension includingDearness Allowance on the said date of increasewill be not less than Rs.300/- and not more thanRs.1000/-. The increase will be reducedproportionately in the case of persons havinglesser qualifying service. The increase inpension shall be shown separately as personalpension. The personal pension shall be takeninto account for allowing Dearness Allowance.2)The increase in pension shall be given effect to from01.12.2002.”4.Admittedly, the petitioners had the benefit of the concessionshown by the Board. But, on the contrary, the petitioners contendedthat by this process, the petitioners are bound to lose lot of money.Instead of revising their wages which was drawn earlier, the respondentBoard is only giving some adhoc increase of 6% subject to a minimum ofRs.600/- in the total pay by which the employees will be getting pensionnot less than Rs.300/- but not more than Rs.1000/-. The petitionersalso contend that fixing the cut off date as 01.12.2002 was illegal andthey had also given examples in the affidavit. According to thepetitioners, persons like the first petitioner, who retired as a ChiefEngineer, will get pension only at the rate of Rs.17,153/- whereas aChief Engineer, who retired on 31.12.2002 with the same basic pay, willget a pension of Rs.17,922/-. This really makes a huge difference ofnearly Rs.769/-. This, according to the petitioners, is illegal. Thepetitioners are in no way responsible for the delay in the fixation ofwages and once wage is fixed with retrospective effect, even thepensioners should be considered as qualified for necessary fixation andfitment and there must be a revised pension to them as otherwise, thecut off date, viz., 30.11.2002, is an artificial date which creates twoclasses thereby offending Article 14 of the Constitution of India. 5.The respondent Board has filed a counter affidavit dated Nil(December 2006) denying these allegations. It was clearly stated thatthe impugned Board proceedings was a concession shown to the petitionersbased upon their representations and the cut off date is not artificialand wage benefits were given only for serving employees, who were on theroll on 01.12.2002. Therefore, necessary fitment was done in theircases. The comparison of the petitioners with those who retired before01.12.2002 and after 01.12.2002 was not proper and they belong to twodifferent classes. In fact, the petitioners must thank the Boardbecause if a similar comparison is made between the persons who retiredbefore 01.12.2000 and after 01.12.2000, again, there will be somedifference in pension calculation. The impugned order shows specialconcession in favour of the petitioners though they were not eligible https://hcservices.ecourts.gov.in/hcservices/ for any pension revision and their comparison with persons, who areserving on the date of settlement or after the date of settlement isreally not warranted. The following passage found in paragraph 7 of thecounter affidavit may be usefully extracted:Para 7:“... it is respectfully submitted that fixing the date ofWage Revision as 1.12.2002 instead of 1.12.2000 is apolicy decision taken by the Board and all the unionswith whom negotiations were held, have agreed to thatdecision and signed the settlement. Therefore, theabove action of the Board is not arbitrary and is quitelegal in view of the fact that the pensioners have beenadequately compensated. The difference in pensionbetween a pensioner who retired before Wage Revision andafter Wage Revision are always bound to arise and this isnot a lone occasion. Only when pension revision istaken up such differences could be set right.”6.However, Mr. Balan Haridass, learned counsel appearing for thepetitioners relied on the following decisions of the Supreme Court todrive home the point that the cut off date fixed by the respondentBoard, viz., 30.11.2002, is arbitrary and violative of Article 14 of theConstitution of India.7.The learned counsel for the petitioners relied on the decisionof the Supreme Court reported in 2006 (9) SCC 630 [U.P. RaghavendraAcharya and others v. State of Karnataka and others] and the followingpassage found in paragraph 26 of the judgment relied on by him isextracted below:Para 26:“These appeals involve the question of revision of pay andconsequent revision in pension and not the grant ofpension for the first time. Only the modality of computingthe quantum of pension was required to be determined interms of the notification issued by the State ofKarnataka. For the said purpose, Rule 296 of the Rules wasmade applicable. Once this rule became applicable,indisputably the computation of pensionary benefits wasrequired to be carried out in terms thereof. The PensionRules envisage that pension should be calculated only onthe basis of the emoluments last drawn. No order,therefore, could be issued which would be contrary to orinconsistent therewith. Such emoluments were to bereckoned only in terms of the statutory rules. If theState had taken a conscious decision to extend the benefitof the UGC pay scales w.e.f. 1-1-1996 to the appellants,allowing them to draw their pay and allowances in termsthereof, we fail to see any reason as to why thepensionary benefits would not be extended to them from thesaid date.” That was a case where the retired teachers of the University and PrivateAided Colleges were seeking parity with the Government College teacherssince the benefit of revision of scales given by the University Grants https://hcservices.ecourts.gov.in/hcservices/ Commission [for short, 'UGC'] was given to both. The Supreme Courtheld that since the benefit of UGC pay scales was given with effect from01.01.1996, the petitioners who retired during the period between01.01.1996 and 31.3.1998 were also given the benefit of pay revisionincluding pension from that date. That is not the case of thepetitioners in this writ petition.8.The learned counsel for the petitioners also relied on thedecision of the Supreme Court reported in 2006 (9) SCC 406 [K.T.Veerappa and others v. State of Karnataka and others] and the followingpassage found in paragraph 13 of the judgment is extracted below: Para 13:“.... However, it is also equally well settled that thecourts should interfere with administrative decisionspertaining to pay fixation and pay parity when they findsuch a decision to be unreasonable, unjust and prejudicialto a section of employees and taken in ignorance ofmaterial and relevant factors.” In the same paragraph, it is also stated that fixation of pay anddetermination of parity in dues is the function of the executives andthe scope of judicial review of administration decision in this regardis very limited. Therefore, largely, the issue turns on the facts ofthe present case. 9.The learned counsel further placed reliance on the decision ofthe Supreme Court reported in 1991 (2) SCC 104 [Indian Ex-ServicesLeague and others v. Union of India] and more particularly, he reliedon paragraph 12 of the judgment, which reads as follows:Para 12:“.... According to that decision, the pension of allearlier retirees was to be recomputed as on the specifieddate in accordance with the liberalised formula ofcomputation on the basis of the average emoluments of eachretiree payable on his date of retirement. For thispurpose there was no revision of the emoluments of theearlier retirees under the scheme. It was clearly statedthat 'if the pensioners form a class, their computationcannot be by different formula affording unequal treatmentsolely on the ground that some retired earlier and someretired later'. This according to us is the decision inNakara and no more.” 10.But in the same judgment, in paragraph 14, the followingpassage is found.Para 14:“.... We have referred to this decision merely toindicate that another Constitution Bench of this Courtalso has read Nakara decision as one of limitedapplication and there is no scope for enlarging the ambitof that decision to cover all claims made by the pensionretirees or a demand for an identical amount of pension toevery retiree from the same rank irrespective of the date https://hcservices.ecourts.gov.in/hcservices/ of retirement, even though the reckonable emoluments forthe purpose of computation of their pension be different.”Therefore, the argument that hostile discrimination was shown to thepetitioners by the impugned of the Board is devoid of merits. On thecontrary, the impugned order shows concession given to them on therepresentation made by the employees and officers. The attack basedon Articles 14 and 16 of the Constitution of India is misconceived. 11.In the light of the above, this writ petition deserves to bedismissed. Accordingly, the same is dismissed. No costs. griSd/- Asst.Registrar/true copy/ Sub Asst.RegistrarToThe Board of DirectorsTamil Nadu Electricity BoardNo. 800 Anna SalaiChennai – 2+2 ccs to Mr.M.Vaidyanathan, Advocate Sr.No.70340 & 70510.+1 cc to to Mr.Balan Haridas, Advocate Sr.No.70471.RL(CO)dcp/3.12W.P. No.33476 of 2006