Allowed

The Secretary to Government v. P.S. Saravanakumar

Madras HC12 Jun 2017WA(MD)/392/2014

Case brief

AI extract

What is this about?

This writ appeal challenged a lower court order directing the State to implement incorrect pay scales for drivers. The Court distinguished precedents on perpetuating illegality, clarified the correct pay scales, and allowed the appeal by dismissing the underlying writ petitions that sought the higher, incorrect amounts.

What did the court decide?

The writ appeal was allowed; the connected writ petitions claiming the higher pay scales were dismissed; the correct pay scales were clarified.

The Secretary to Government Vs P.S… — Pension and Retirement Benefits | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 12.06.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM

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AND THE HONOURABLE MR.JUSTICE P.VELMURUGAN W.A.(MD) No.392 of 2014 & M.P.(MD).No.1 of 2014

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The Secretary to Government,

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Finance (Pay Cell) Department,

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Fort St.George,

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Chennai – 600 009.

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The Superintending Engineer, National Highways Department, Tirunelveli Circle, Tirunelveli.

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The Divisional Engineer (Execution) National Highways Department, Tirunelveli division, Tirunelveli.

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... Appellants/Respondents

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vs.

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P.S.Saravanakumar ... Respondent/Petitioner

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PRAYER: Writ Appeal is filed under Clause 15 of Letters Patent Act against the order, dated 23.03.2011, made in W.P.(MD).No.10433 of 2010.

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Prayer in WP(MD). 10433/ 2010 :

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Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a WRIT OF MANDAMUS, directing the Respondents to implement the Selection Grade and Special Grade Scale of Pay as indicated in Schedule-II of the Tamil Nadu Revised Scales of Pay Rules 1998 at Rs.5000/and Rs.5500/- respectively to the petitioner Driver from 01-01-1996 and pay all arrears within a stipulated time period.

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For Appellants : Mr.V.R.Shanmuganathan, Special Government Pleader For Respondent : Mr.K.P.Narayanakumar,

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https://hcservices.ecourts.gov.in/hcservices/

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JUDGMENT

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[Judgment of the Court was delivered by T.S.SIVAGNANAM,J ]

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Heard Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the appellants and Mr.K.P.Narayanakumar, learned counsel appearing for the respondent.

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This appeal, by the State, is directed against the order passed in W.P(MD)No.10433 of 2010, dated 23.03.2011. The said writ petition was filed to direct the appellants to implement the Selection Grade and Special Grade Scale of pay as indicated in Schedule-II of the Tamil Nadu Revised Scales of Pay Rules, 1998 at Rs.5,000/- and Rs.5,500/- respectively to the petitioner-driver from 01.01.1996. The writ petition was allowed following the similar orders in W.P.No.25889 of 2010. The issue involved in this writ petition is squarely covered by the decision of the Hon'ble Division Bench of this Court in the case of The Director of Sericulture Department, Salem v. K.Kumar 2015(4) CTC 241 . This is an appeal which arose out of one of the order as that of the order impugned before us. This Court took into consideration the orders passed in the batch of cases, allowed the appeals filed by the Government. The operative portion of the order reads as follows:-

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“ 26. Therefore, unless the law has developed to such an extent that once the court commits a mistake, the same becomes irredeemable, even at the cost of public money, it is not possible for us to invoke Article 14. As we have pointed out elsewhere-

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(a) the very first Order of a learned Judge of this Court merely directed the grant of selection and Special Grades as per G.O.Ms.No.162, without indicating the exact Scales of Pay;

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(b) all subsequent Orders passed in favour of the other employees, by various learned Judges of this Court, were passed at the stage of admission, without putting the Government on notice and without giving them an opportunity, solely on the basis that the issue raised in those cases were already covered by the decision of a Single Judge dated 30.09.2008, which was also affirmed by the Division Bench by an Order dated 1.9.2009;

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(c) all subsequent Orders got implemented by those Petitioners, under threat of contempt.

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27. Therefore, the Writ Petitioners in the present batch of cases cannot rely upon Article 14, when this https://hcservices.ecourts.gov.in/hcservices/ Court never went into the question (except in the decision of D.Hariparanthaman,J.) as to whether the Drivers are

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entitled to a Selection Grade Scale of Pay of Rs.5,000/and a Special Grade Scale of Pay of Rs.5,500/-.

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28. As rightly pointed out by the learned Advocate General, the pressure that keeps mounting upon this Court due to the huge pendency and the tendency that results therefrom, to dispose of at least those cases which are covered by earlier decisions, even on the first or second date of hearing, has actually led to this position. Therefore, we cannot sweep the core issue under the carpet and reiterate the same mistakes by taking recourse to Article 14. Hence, we reject the First Contention Advanced on behalf of the employees.

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Contention 2:

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29. The second contention of the learned Counsel appearing for the employees is that when several Benches of this Court both Single and Division, have passed Orders in a particular manner, it is not open to the respondents to again and again re-agitate the same issue in every Writ Petition.

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30. In this connection, Mr.M.Ravi, learned Counsel for some of the Writ Petitioners relies upon the decisions of the Supreme Court in Om Prakash Asati v. State of Uttar Pradesh, 2012 (1) LLN 1(SC):2012 (5) SCC 552; and Sandhya Educational Society v. Union of India, 2014 (7) SCC 701.

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31. But, what was laid down in Om Prakash Asati was that once a pure question of law is settled by the Court and the same had attained finality, it is not open to one of the parties to re-agitate the same question of law again and again. That case arose out of the procedure adopted by the screening Committee of the Uttar Pradesh Jal Nigam for prematurely retiring its employees. In two earlier decisions, the Court had held that the criteria adopted by the Screening Committee was illegal. Therefore, the Supreme Court held in Para 9 that once a pure question of law is answered in a particular manner and the same had also attained finality, the Respondents should accept the same without any further protestation.

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32. But in the case on hand, the question as to whether the Drivers are entitled to a particular Selection Grade Scale of Pay and a particular Special Grade Scale of Pay is not a pure question of law. It is a question of fact, to be culled out from the Schedules to the Tamil Nadu Revised Scales of Pay Rules, 1989 & 1998. Moreover, the earliest decision of this Court, only based upon which hundreds of Writ Petitions were subsequently allowed, never discussed or laid down any factual finding that the Drivers were entitled to a particular Scale of Pay in the Selection Grade or Special Grade. Hence, the decision in https://hcservices.ecourts.gov.in/hcservices/ Om Prakash Asati is of no application.

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33. The second decision in Sandhya Educational Society is of no relevance. The said decision dealt with the

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question relating to the maintainability of a Review Application before the High Court, especially after dismissal of the Special Leave Petition. While dealing with the said question, the Supreme Court pointed out in Para 9 that judicial decorum and discipline is paramount and that a coordinate Bench has to respect the Judgments and Orders passed by another Bench.

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34. It is true that consistency helps the parties to a litigation to know where they stand. But, when it is brought to the notice of the Court that on most of the earlier occasions, several similarly placed employees obtained Orders at the stage of admission, on the ground that the issue is already covered by a decision of this Court and that it was only in this manner that several employees got a benefit that was not legitimately due to them, the Court cannot shut its eyes and choose to prefer maintenance of discipline rather than upholding public interest.

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35. As a matter of fact, the greatness of the Court lies only in its courage and ability to correct its mistakes. Justice is more precious than discipline. This was the principle that the Supreme Court highlighted in A.R.Antulay v. R.S.Nayak, AIR 1988 SC 1531. It was observed in the said decision that '' in rectifying an error, no personal inhibitions should debar the Court because no person should suffer by reason of any mistake of the Court.'' The Supreme Court focused on the elementary rule of justice that no party should suffer due to the mistake of the Court. Therefore, this Court should not feel shackled either by the rules of procedure or by the principles of propriety, when it is so glaring that a gross injustice has been done to the State (1) by Writ Petitions getting allowed at the stage of admission, and (2) by getting those Orders implemented under threat of contempt. This is especially so when the earliest decision that was followed in all other cases, did not decide the Scale of Pay to be granted for Selection and Special Grades. Hence, the Second Contention of the Writ Petitioners is also liable to be rejected. Contention 3:

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36. The third contention of the Writ Petitioners is that the argument of the State that an illegality cannot be perpetrated, has to be rejected outright, in view of the settled position that what was done by the Court cannot be treated as an illegality.

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37. In Support of this contention, Mr.R.Sunil Kumar, learned Counsel for some of the Writ Petitioners invited our attention to the decision of the Supreme Court in https://hcservices.ecourts.gov.in/hcservices/ Maharaj Krishna Bhatt v. State of Jammu and Kashmir, 2009 (1) LLN 467 (SC):2008(9)SCC 24. In that case, one person working as a Constable got promotion to the post of Sub-

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Inspector, in relaxation of the rule relating to 50% quota for direct recruitment. Other persons approached the High Court and in respect of one individual, a Single Judge allowed the claim. The Division Bench of the High Court dismissed the Appeal filed by the State. Therefore, that individual was promoted as Sub-Inspector. As a consequence, the Writ Petitions filed by the other individuals were allowed by another learned Judge. But this decision was reversed by the Division Bench, forcing the individuals to take up the matter to the Supreme Court. When the individual employees pitched their claim on the basis of Articles 14 & 16, the State contended that there could be no equality in illegality. But, the said argument was rejected by the Supreme Court, on the ground that once a Court had granted a benefit, the same cannot be treated as illegal.

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38. Paragraphs 21 to 23 of the Order read as follows:

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'' 21. It was no doubt contended by the learned Counsel for the Respondent – State that Article 14 or 16 of the Constitution cannot be invoked and pressed into service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a Statute.

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22. There can be no two opinions about the legal proposition as submitted by the learned Counsel for the State. But in the case on hand, in our opinion, there was no illegality on the part of the learned Single Judge in allowing Writ Petition No.519 of 1987 instituted by Abdul Rashid Rather and in issuing necessary directions. Since the action was legal and in consonance with law, the Division Bench confirmed it and this Court did not think it proper to interfere with the said Order and dismiss the Special Leave Petition. To us, in the circumstances, the learned Single Judge was wholly right and fully justified in following the judgment and Order in W.P.No.519 of 1987 in the case of the present Writ Petitioners also.

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23. In fairness and in view of the fact that the decision in Abdul Rasheed Rather had attained finality, the State authorities ought to have gracefully accepted the decision by granting similar benefits to the present Writ Petitioners. It, however, challenged the Order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed the letters patent Appeal by affirming the Order of the Single Judge. The letters patent Appeal by affirming the Order of the Single Judge. The letters patent Appeal, however, was allowed by the Division Bench and the Judgment and Order of the https://hcservices.ecourts.gov.in/hcservices/ learned Single Judge was set aside. In our considered view, the Order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and

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fairness in action. The said Order, therefore, deserves to be restored.''

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39. But, as seen from Paragraph 22 of the Report in Maharaj Krishan Bhatt, the Supreme Court factually found that there was no illegality on the part of the learned Judge in allowing the first Writ Petition W.P.No.519 of 1987. Therefore, in Para 22 of the report, the Supreme Court clarified that once an action was found to be legal and in consonance with law, the State cannot argue that it was an illegality that cannot be allowed to be perpetrated.

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40. In this case, we have gone through the Government Orders many times, to find out what Scale of Pay the Drivers are entitled to, in the Selection and Special Grades. We are unable to find, however lenient our approach is, that the Writ Petitioners could legitimately lay a claim for a Selection Grade Scale of Pay of Rs.5,000-8,000 and Special Grade Scale of Pay of Rs.5,5009,000. Therefore, what they have claimed and got in most of the previous decisions of this Court is not what they are lawfully entitled to. Once this is clear, it would follow as a natural consequence that the Writ Petitioners herein want only that illegality to be perpetrated. An illegality will not undergo a metamorphosis and become legal, merely because it received the seal of approval of a Court of law. Therefore, the Third Contention is also liable to be rejected.

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41. In Union of India v. Kartick Chandra Mondal, 2010 (1) LLN 687 (SC) : 2010 (2) SCC 422, the Supreme Court, relying upon its previous decisions in various cases including the one in State of Bihar v. Upendra Narayan Singh, 2009 (2) LLN 754 (SC) : 2009 (5) SCC 69, held that Article 14 is a positive concept and that it cannot be enforced in a negative manner. The Court further held that if an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong Order has been passed by a Judicial Forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing a wrong Order. Interestingly, the decision of the Supreme Court in Katick Chandra Mondal was subsequent to the decision in Maharaj Krishan Bhatt and the decision in Maharaj Krishan Bhatt is also referred to in Kartick Chandra Mondal.

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42. Therefore, in the result, all the Writ Petitions filed by the individual employees claiming Selection Grade Scale of Pay of Rs.5,000-8,000 and Special Grade Pay Scale https://hcservices.ecourts.gov.in/hcservices/ of Rs.5,500-9,000 are liable to be dismissed. However, there are a few Writ Petitions such as W.P.Nos.23550 of 2010, 5498 of 2012 & 30616 of 2012, where the employees

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claim that they are not even granted the admissible Selection Grade and Special Grade scales pay of Rs.4,0006,000 and Rs.4,300-6,000 respectively.

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43. Therefore, with a clarification that all the petitioners in the Writ Petitions and the Respondents in the Writ Appeals are entitled only to a Selection Grade Scale of Pay of Rs.4,000-100-6,000 and a Special Grade Scale of Pay of Rs.4,300-100-6,000, but nor more than that, all the Writ Petitions filed by the employees are dismissed. All the Writ Appeals filed either by the State Government or by various Heads of Departments or by various officers of the Government or by various Local Bodies or Boards or Corporations, shall stand allowed. There will be no Order as to costs.

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3.The above decision is squarely been applicable to the case on hand. In the impugned order, a reference has been made about the order in W.A.Nos.383 to 391 of 2009 and the Division Bench in the aforementioned decision, has noted that the writ appeals were dismissed together with W.P.No.383 to 391 of 2009 by a common order, dated 01.09.2009. Thus, for all the above reasons, the appellants are entitled to succeed in the appeal and the appeal is allowed in terms of the decision of the Hon'ble Division Bench referred supra. No costs. Consequently, connected miscellaneous petition is also closed.

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Sd/-

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Assistant Registrar (Crl.Side)

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/True copy/

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Sub Assistant Registrar

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To:

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