E. Santhi v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 5.8.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.14514 of 2006andWPMP No.15303 of 20061.E.Santhi,2.M.Jayalakshmi,3.R.Devaki,4.C.Tamilnarasi,5.R.P.Vasanthi,6.A.Senthamizhi Selvi,7.R.Neelakandan,8.M.Selvaraj. ... Petitioners vs.1.The State of Tamilnadu, represented by its Secretary to Government, Adidravidar Welfare Department, Fort St. George, Chennai-600 009.2.The Director, Adi Dravidar Welfare Department, Ezhilagam, Chennai-600 005.3.Welfare Officer, The District Adi Dravidar and Tribal Welfare Department, Perambalur and District. ... RespondentsWrit Petition is filed under Article 226 of the Constitution ofIndia praying for the issue of a Writ of Certiorarified Mandamus tocall for records of the third respondent dated 9.11.2005 passed inNa.Ka.I4/30634/2004 along with connected records, quash the portionof that order, reappoint the petitioners on a consolidated pay ofRs.850/- per month directing respondents to restore the order of thethird respondent dated 5.11.2001 in Na.Ka.I5/3588/2001 appointing thepetitioners on time scale of Rs.2,550-55-2,660-60-3,200/- and directthe respondents to pay the difference of salary for the period fromthe original order of appointment dated 5.11.2001 passed inNa.Ka.I5/3588/2001 of the third respondent.For Petitioner : Mr.M.Kalyanasundaram Senior Counsel for Mr.R.Vasudevan https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.L.S.M.Hasan Fizal, Government Advocate. -----O R D E R Eight persons have joined together and filed the writ petitionchallenging a part of the impugned proceedings dated 9.11.2005 inNa.Ka.No.I4/30634/2004.2. In the impugned order 15 persons have been reappointed ascook on a consolidated monthly salary of Rs.850/-. The grievance ofthe petitioners is that they should have been appointed on time scaleof pay and not under consolidated pay. 3. The facts that lead to the filing of the writ petition are asfollows:-Petitioners were originally appointed as cooks by the thirdrespondent in his proceedings Na.Ka.No.I5/3000/2001 dated 5.11.2001to serve in the Adi Dravidar Welfare School Hostels in PerambalurDistrict. They were appointed on a time scale of pay of Rs.2,550-55-2,660-60-3,200. No doubt, it is stated that they are appointedtemporarily. On 21.12.2001 by G.O.Ms.No.234, the appointment of thepetitioners as cook was cancelled relying upon G.O.Ms.No.21 Labourand Employment Department dated 2.2.2000. Since the G.O.Ms.No.234dated 21.12.2001 cancelling the appointment of the petitioners wasdone arbitrarily and without following the due process of law, someof the cooks appointed on 5.11.2001, approached the TamilnaduAdministrative Tribunal. The Tribunal by its order dated 11.2.2003in O.A.Nos.180 to 184 of 2002 and 140 to 150 of 2002 set aside theG.O.Ms.No.234 dated 21.12.2001 cancelling the appointment order inrespect of the applicants before the Tribunal. The order of theTribunal was implemented by the District Revenue Officer and JointDirector, Adi Dravidar Welfare, Chennai by order dated 20.12.2004in Na.Ka.No.I4/30634/2004. The persons who had the benefit of theorder of the Tribunal were reemployed on the time scale of pay ofRs.2,550-55-2,660-60-3,200/- and after adding other perquisites, thebasic pay was taken and fixed as Rs.2,660/-. These persons are nowregular employees in the time scale of pay as stated above.Thereafter, six other persons approached this court for similarrelief in W.P.No.21345 of 2005. This court by order dated 30.6.2005directed the Secretary to Government, Adi Dravidar and Tribal WelfareDepartment to consider their appeal on merits. The petitionersin the present writ petition made representation to the firstrespondent Government and to the other respondents in this writpetition to consider their claim for reemployment as in the case ofthe cooks who approached the Tribunal and got favourable orders.This was considered by the respondent authority and on 21.10.2005,the Secretary to Government Adi Dravidar Welfare Department directedthe Commissioner, Adi Dravidar Welfare Department to appoint the https://hcservices.ecourts.gov.in/hcservices/ petitioners and other persons on consolidated pay of Rs.850/- permonth. Consequent to the above said internal communication, on9.11.2005 in the impugned proceedings 15 persons, who have been leftout, were reemployed on a consolidated salary of Rs.850/- per month.In the impugned order, it is clearly stated that these persons wereoriginally appointed on 5.11.2001 and they have been removed fromservice.4. The grievance of the petitioners is that their originalappointment is through the employment exchange and they wereappointed on the time scale of pay. The order removing them fromservice was an arbitrary action by the respondent department based ona baseless and irrelevant complaint by a third party. The ordercancelling the appointment has been set aside by the Tribunal at thebehest of five persons and they were reemployed on a time scale ofpay. The petitioners in the present case are also entitled to thesame benefit (i.e.) time scale of pay on reemployment withoutdiscrimination. The impugned order so far it fixes the salary atRs.850/- as consolidated pay is arbitrary and discriminatory. Noreason has been given in the order as to why the time scale of paygranted to similarly placed persons is denied to the petitioners. Onthis premises, that part of the impugned orderwhich deals withfixation of salary is challenged in the present writ petition.5. On record there is no counter-affidavit filed. However, oninstruction, learned Government Advocate submits that suitable stepswill be taken to absorb these persons in the regular time scale ofpay as and when vacancy arises.6. The impugned order so far as it restricts the salary in a sumof Rs.850/- per month as consolidated pay cannot be sustained for thefollowing reasons:-(i) At the time of appointment on 5.11.2001, the petitioners wereappointed on the time scale of pay.(ii) The order cancelling the appointment in G.O.Ms.No.234 dated21.12.2001 has been set aside by the Tribunal so far as fivesimilarly placed persons is concerned and the Government has acceptedand implemented the order.(iii) The five persons, who had the benefit of the order of theTribunal and reemployment, were given time scale of pay and notconsolidated pay.(iv) The petitioners, who were similarly placed are entitled toreemployment on time scale of pay as in the case of five persons whohad the benefit of the order of the Tribunal. The reappointmentorder dated 28.12.2004 in Na.Ka.No.I4/30634/2004 in respect of thefive persons is available in the typeset of papers. https://hcservices.ecourts.gov.in/hcservices/ (v) The Government has sought for an opinion from the SeniorStanding Counsel and has accepted his view. Consequently,reemployment of the 15 persons was ordered. These persons onreemployment cannot be denied the time scale of pay without any justcause or reason. (vi) Further, in the order dated 9.11.2006 which is based on thedirection of the Secretary to Government, there is no reason given asto why the salary of the petitioners is fixed at Rs.850/- per monthas a consolidated pay. In the absence of any material to fix thesalary at Rs.850/- per month (consolidated pay), the petitioner onreemployment should have the benefit of time scale of pay as in thecase of similarly placed five persons who were appointed by orderdated 28.12.2004 in Na.Ka.No.I4/30634/2004.(vii) It is not in dispute that even now the petitioners areworking as cook in the respondent department in view of the vacancyexisting as on date. Therefore, the plea of the respondents thatthey will be granted time scale of pay as and when regular vacancyarise cannot be accepted. When there is sufficient post availableand the petitioners are working in such post, they are entitled totime scale of pay without discrimination. Petitioners have madeout a case for appropriate relief. 7. In the result, the impugned order insofar as it restricts thesalary at Rs.850/- per month (consolidated pay) is set aside and thepetitioners will be entitled to the time scale of pay with continuityof service from the date of original appointment. As far as therelief with regard to payment of salary for the period not served(i.e.) from the date of termination till date of reappointment,petitioners shall make a separate representation to the appropriateauthority and the same shall be considered by the authority on itsown merits. If any payment has been made with regard to otherpersons similarly placed, the petitioners can be given appropriaterelief. The discretion to grant the amount is purely with therespondent department. The Writ Petition stands allowed to theextent indicated above. No costs. Consequently, connectedmiscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ tsTo 1.The Secretary to Government, Adidravidar Welfare Department, Fort St. George, Chennai-600 009.2.The Director, Adi Dravidar Welfare Department, Ezhilagam, Chennai-600 005.3.The Welfare Officer, The District Adi Dravidar and Tribal Welfare Department, Perambalur and District. 1 cc To Mr.R.Vasudevan, Advocate, SR.355361 cc To The Government Pleader, SR.36102 W.P.No.14514 of 2006JRG(CO)SRA(19/08/2009)