W.M.P.Nos.2074, 2076 and 2077 of 2021 in W.P.Nos.20397, 20398 and 20401 of 2020 and W.M.P.No.6978 of 2021 in W.P.(MD) No.18535 of 2020 and W.P.Nos.17947, 19114, 1516, 18261, 18829, 19049, 19137, 19180, 19190, 19053, 17637, 20007 of 2020, 3653, 729, 1197, 1205, 1470, 2699, 2705, 2932, 3182, 3700, 4933, 4954 of 2021, W.P.(MD) Nos. 17163, 17174 to 17176, 17177, 17178, 17167, 17168, 17170, 17164, 17165, 17171 to 17173, 17179, 17181, 17624, 17625, 17649, 18107, 18109, 18552, 18561, 18564, 18566, 18568, 18555, 18558, 18571, 18758, 18956, 19606 of 2020, 54, 60, 56, 63, 64 and 67 of 2021 Reserved on Pronounced on 01.04.2021 19.04.2021 Petitioner Respondent THE ASSOCIATION OF TAMIL NAD U HIGHWAYS ENGINEERS, REP. BY GENERAL SECRETARY, NO.35V, TALUK OFFICE ROAD, SAIDAPET, CHENNAI 600 015 THE STATE OF TAMIL NADU REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, FINANCE DEPARTMENT, FORT ST.GEORGE, CHENNAI 600 009 Petitioner Counsel Respondent Counsel Prayer (W.P.No.20397/2020): calling for the records of the respondent in G.O.Ms.No. 404 Finance (Pay Cell) Department, dated 12.11.2020 and to quash the same as arbitrary, illegal, unconstitutional and consequently direct the respondent to grant revision of pay scale in terms of G.O. Ms.No. 283, Finance (Pay Cell) Department, dated 26.08.2010 based on the pay scale presently drawn by the petitioner together with all consequential benefits flowing there from Prayer (W.M.P.No.2074/2021): To vacate the interim stay granted on 30.12.2020 made in WMP.Nos.25167 and 25168 of 2020 in W.P.No. 20397 of 2020. S.VAIDYANATHAN,J., The following Miscellaneous Petitions have been filed, seeking to vacate the interim orders passed by this Court on 14.12.2020 and 30.12.2020: Sl.No. W.M.P.No. Prayer 1. W.M.P.No.2074 of 2021 in W.P.No.20397 of 2020 To vacate the interim stay granted on 30.12.2020 made in W.M.P.Nos.25167 and 25168 of 2020 in W.P.No.20397 of 2020. 2. W.M.P.No.2076 of 2021 in W.P.No.20398 of 2020 To vacate the interim stay granted on 30.12.2020 made in W.M.P.No.25172 of 2020 in W.P.No.20398 of 2020. 3. W.M.P.No.2077 of 2021 in W.P.No.20401 of 2020 To vacate the interim stay granted on 30.12.2020 made in W.M.P.No.25177 to 25179 of 2020 in W.P.No.20401 of 2020. 4. W.M.P.No.6978 of 2021 in W.P.(MD) No.18535 of 2020 To vacate the interim stay granted on 14.12.2020 made in W.M.P.(MD) No.15503 of 2020 in W.P.(MD) No.18535 of 2020. 2. This Court passed the aforesaid interim orders, restraining the Government from reducing the pay band, pertaining to certain Departments, in respect of which Writ Petitions have been filed. This Court also directed the Government to continue to pay the existing pay that were adopted earlier.

W.M.P.Nos.2074, 2076 and 2077 of 2021
in W.P.Nos.20397, 20398 and 20401 of 2020
and W.M.P.No.6978 of 2021 in W.P.(MD) No.18535 of 2020 and
W.P.Nos.17947, 19114, 1516, 18261, 18829, 19049, 19137, 19180, 19190, 19053, 17637, 20007 of 2020, 3653, 729, 1197, 1205, 1470, 2699, 2705, 2932, 3182, 3700, 4933, 4954 of 2021, W.P.(MD) Nos. 17163, 17174 to 17176, 17177, 17178, 17167, 17168, 17170, 17164, 17165, 17171 to 17173, 17179, 17181, 17624, 17625, 17649, 18107, 18109, 18552, 18561, 18564, 18566, 18568, 18555, 18558, 18571, 18758, 18956, 19606 of 2020, 54, 60, 56, 63, 64 and 67 of 2021

Reserved on Pronounced on
01.04.2021 19.04.2021

Petitioner Respondent
THE ASSOCIATION OF TAMIL NAD
U HIGHWAYS ENGINEERS, REP. BY GENERAL SECRETARY, NO.35V, TALUK OFFICE ROAD, SAIDAPET, CHENNAI 600 015 THE STATE OF TAMIL NADU
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, FINANCE DEPARTMENT, FORT ST.GEORGE, CHENNAI 600 009
Petitioner Counsel Respondent Counsel
Prayer (W.P.No.20397/2020): calling for the records of the respondent in G.O.Ms.No. 404 Finance (Pay Cell) Department, dated 12.11.2020 and to quash the same as arbitrary, illegal, unconstitutional and consequently direct the respondent to grant revision of pay scale in terms of G.O. Ms.No. 283, Finance (Pay Cell) Department, dated 26.08.2010 based on the pay scale presently drawn by the petitioner together with all consequential benefits flowing there from
Prayer (W.M.P.No.2074/2021): To vacate the interim stay granted on 30.12.2020 made in WMP.Nos.25167 and 25168 of 2020 in W.P.No. 20397 of 2020.

S.VAIDYANATHAN,J.,

The following Miscellaneous Petitions have been filed, seeking to vacate the interim orders passed by this Court on 14.12.2020 and 30.12.2020:

Sl.No. W.M.P.No. Prayer
1. W.M.P.No.2074 of 2021 in W.P.No.20397 of 2020 To vacate the interim stay granted on 30.12.2020 made in W.M.P.Nos.25167 and 25168 of 2020 in W.P.No.20397 of 2020.
2. W.M.P.No.2076 of 2021 in W.P.No.20398 of 2020 To vacate the interim stay granted on 30.12.2020 made in W.M.P.No.25172 of 2020 in W.P.No.20398 of 2020.
3. W.M.P.No.2077 of 2021 in W.P.No.20401 of 2020 To vacate the interim stay granted on 30.12.2020 made in W.M.P.No.25177 to 25179 of 2020 in W.P.No.20401 of 2020.
4. W.M.P.No.6978 of 2021 in W.P.(MD) No.18535 of 2020 To vacate the interim stay granted on 14.12.2020 made in W.M.P.(MD) No.15503 of 2020 in W.P.(MD) No.18535 of 2020.

2. This Court passed the aforesaid interim orders, restraining the Government from reducing the pay band, pertaining to certain Departments, in respect of which Writ Petitions have been filed. This Court also directed the Government to continue to pay the existing pay that were adopted earlier.

3. The entire issue crops up on account of re-fixation of the pay band, consequent to the recommendations of the 6th pay commission, and the descending revision thereof as per recommendations of the Committee constituted for the purpose of such re-fixation.

4. Learned Senior Counsel and the learned Counsel appearing for the Petitioners respectively in the Writ Petitions submitted in ensemble that the Writ Petitioners have been enjoying the higher pay band for more than a decade, which is now sought to be reduced in respect of the members of the Association and other persons, who are concerned with the batch of Writ Petitions and in case the 6th pay commission benefit is extended, definitely the pay band will be reduced. It was further submitted that there was no delay in approaching the Court and the same cannot be cited as a reason for reduction of pay, being drawn by the members of the Association / Writ Petitioners.

4.1. According to them, the members of the Petitioner Association and others have been equated in the same category since 1930 onwards and they cannot now be treated as unequal. It was argued that the post of Assistant Engineer in the State of Tamil Nadu is equivalent to the post of Assistant Executive Engineer in the Central Government and without assigning the duties and responsibilities, the 6th Pay Commission’s recommendations, if implemented, will make the employeess draw lesser pay band, on reduction of the existing pay. It was stated that in 1930, Veterinery Assistant Surgeons and Agricultural Officers are treated equally and normally, with regard to pay fixation, the Court will not interfere and the judicial review is possible only if the pay band fixed is irregular. It was further stated that reducing the pay band is detrimental to everyone, who are concerned with these Writ Petitions.

4.2. It was vehemently argued that the Commission that has been appointed by the Apex Court has not gone into the details of the submissions made and the grade pay to the feeder category is much more than the higher category, in which a person is going to be promoted. The respondents have gone by the Central Public Works Department’s (CPWD) manual and without proper comparison, recommendations have been made. As the matter went upto the Supreme Court, a Pay Grievance Redressal Committee under the Chairmanship of Justice D.Murugesan, a Former Chief Justice of High Court of Delhi has been constituted to look into the disparity. According to them, none of the submissions, including the comparative chart has been referred to and in view of the orders of the Apex Court, the benefit of 7th pay commission has not been extended and therefore, the grievance of the parties with regard to 6th pay commission’s recommendation has got to be resolved first.

5. To controvert all the above submissions, Mr.Vijay Narayan, learned Advocate General contended that a Committee was constituted to redress the grievance with regard to the revision of pay and by a Government Order in G.O.Ms.No.234 dated 01.06.2009, the 6th Pay Commission’s recommendations were implemented with effect from 01.01.2007 and the pay band III was fixed in the pay scale of Rs.9300 – 34800 + GP 4700, which contains more than 50 categories. Subsequently, One Man Commission Report has been received and the pay was fixed. By G.O.Ms.No.448 dated 31.12.2010, revised scale of pay was fixed in respect of Agricultural / Horticultural Officers and with regard to others, different Governments Orders were issued, by fixing the pay scale of Rs.15600-39100 + GP 7600. Subsequent thereto, by G.O.Ms.No.71 dated 26.02.2011, in order to remove the disparity in pay, the Grade Pay of Rs.5400 was reduced to Rs.5100.

5.1. It was further contended that based on the report of the One Man Commission, headed by Thiru.S.Krishnan,I.A.S., orders were issued by the Government vide G.O.242 dated 22.07.2013, by bringing them back to Pay band II in the old scale, which was challenged before this Court, in which an interim order was passed and thereafter, Justice Venkatachala Moorthy was appointed to look into the matter and the pay was protected in the pay scale of Rs.15600. The issue was taken up before the Supreme Court and on 28.11.2019, the Apex Court appointed Justice D.Murugesan as Chairman of the Committee and give a report, as Justice Venkatachala Moorthy, due to illness, recused from hearing the dispute. It was also contended that in order to remove pay anomalies, G.O.Ms.No.404 dated 12.11.2020, which is the subject matter of these Writ Petitions, was issued.

5.2. According to the learned Advocate General, there was a wrong fixation of pay in the Department and any wrong fixation can be corrected at any point of time. In the present cases on hand, as the employees have already been drawing the money, the Government has decided not to deduct / recover arrears of amount. The Hon’ble Supreme Court also made it clear at the time of appointing the Commission that the benefits accrued pursuant to the recommendations of the 7th Pay Commission would be decided later on, based on the outcome of the anomalies in the 6th Pay Commission. No prejudice is going to be caused to the petitioners, if there is any rectification made.
6. When this Court posed a question as to the possibility of implementation of 7th Pay Commission so as to give quietus to the entire issue, learned Advocate General submitted that taking into account the old scale of pay, if the revision is extended, the employees will be getting much more than what they are getting now and already, the Government is undergoing huge financial loss and the members of the Association are not willing to accept the same and they want the corresponding scale in the 7th Pay Commission to be paid, based on the incorrect fixation, which is sought to be rectified by the Government. According to him, normally, no pay scale will be more than Central Government Pay and in the present case on hand, higher pay is being paid to the members of the Association, which is not only irregular, but also illegal.

7. Heard the learned Senior Counsel / learned counsel for the Writ Petitioners and the learned Advocate General appearing for the Government in extenso.

8. Admittedly, this Court has granted interim orders, which have been extended from time to time and in case, the Writ Petitioners could not succeed in these Writ Petition, the Government should not face difficulties to recover the amount from them, as the Government is now in need of amount to fight against the unknown enemy, namely, Corona. Of course, it is true that the Apex Court in a recent judgment reported in MANU/SCOR/46090/2020 [Steel Authority of India Ltd., vs. Raghbendra Singh and Others] held that the gratuity amount can be adjusted to recover the amount, but the said finding has been given in a different context.

9. This Court is also aware that issuance of direction to the Government to adjust the gratuity amount from the petitioners at the time of their retirement / termination, will definitely cause much hardship to the exchequer, as there is every possibility of the Court observing in future that the amount aready paid need not be recovered. This Court has to see the balance of convenience of either side in the interest of justice.

10. Admittedly, the employees are getting more pay than their eligibility and there has been a wrong fixation of pay, as stated by the Respondents. The Government has also agreed to waive the recovery of arrears for their fault and it does mean that wrong fixation, if any can continue forever. The Government has also slept over the matter and did not take any steps to effect recovery at the earliest point of time. Hence, this Court, in the interst of justice and for the purpose of balance convenience, is inclined to modify the interim order as follows:

i) The Government / Respondents in the Writ Petitions shall pay only 50% of the difference in amount that has been wrongly fixed (according to them), from the month of April, 2021 and in case the Writ Petitioners succeed in the batch of Writ Petitions, the Government shall repay the 50% of the difference in amount withheld along with interest @ 6% p.a.;

ii) Similarly, in the event of Government getting a favourable order from this Court in the batch of Writ Petitions, the Government is entitled to recover the entire amount (excluding the period waived off by the Government), from the Writ Petitioners, by calculating interest @ 6% p.a.;

iii) The amount paid to the employees / Writ Petitioners upto the month of March, 2021, pursuant to the interim orders, shall not be recovered from them, till the disposal of the Writ Petitions, from the date of interim order;

iv) The members of the Petitioner Association shall file an individual affidavit of undertaking within 10 days from today, that in case they cease to be employees under any circumstances / nomenclature, such as retirement, termination, etc., before disposal of this batch of Writ Petitions, the amount so paid & recoverable (as mentioned in Paragraph No.10 (i & ii) supra) pursuant to this interim order can be adjusted from their gratuity amount. However, Government shall not deduct the interest portion from the gratuity amount and the amount to be refunded to the employees in case they succeed finally. It is made clear that the employees are not entitled to claim any interest for the returned amount, as the gratuity amount is going to be adjusted only against the actual amount payable, without interest by the Government.

11. This Court initially thought of directing the Government to continue, paying the amount, provided the Writ Petitioners / employees furnish unencumbered properties as collateral security. Since it is not known as to how many persons will be having the property in their name and will hand over the same to the Government, the interim order has been modified as mentioned in Paragraph No.10.
12. It is made clear that the observations made hereinabove are only for the purpose of disposal of these Vacate Stay Petitions and it will have no bearing on the main Writ Petitions. It is open to the parties to raise all the points available to them, when the matter is finally taken up for disposal.

13. With the above observation / direction / modification, Vacate Stay Petitions in W.M.P.Nos.2074, 2076 and 2077 in W.P.Nos.20397, 20398 and 20401 of 2020 and W.M.P.No.6978 of 2021 in W.P.(MD) No.18535 of 2020 are ordered in the aforesaid terms.

Registry is directed to list this batch of Writ Petitions for final hearing in the second week of June, 2021.