IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.8.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.14514 of 2006 and WPMP No.15303 of 2006 1.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. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus to call for records of the third respondent dated 9.11.2005 passed in Na.Ka.I4/30634/2004 along with connected records, quash the portion of that order, reappoint the petitioners on a consolidated pay of Rs.850/- per month directing respondents to restore the order of the third respondent dated 5.11.2001 in Na.Ka.I5/3588/2001 appointing the petitioners on time scale of Rs.2,550-55-2,660-60-3,200/- and direct the respondents to pay the difference of salary for the period from the original order of appointment dated 5.11.2001 passed in Na.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 petition challenging a part of the impugned proceedings dated 9.11.2005 in Na.Ka.No.I4/30634/2004. 2. In the impugned order 15 persons have been reappointed as cook on a consolidated monthly salary of Rs.850/-. The grievance of the petitioners is that they should have been appointed on time scale of pay and not under consolidated pay. 3. The facts that lead to the filing of the writ petition are as follows:- Petitioners were originally appointed as cooks by the third respondent in his proceedings Na.Ka.No.I5/3000/2001 dated 5.11.2001 to serve in the Adi Dravidar Welfare School Hostels in Perambalur District. 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 appointed temporarily. On 21.12.2001 by G.O.Ms.No.234, the appointment of the petitioners as cook was cancelled relying upon G.O.Ms.No.21 Labour and Employment Department dated 2.2.2000. Since the G.O.Ms.No.234 dated 21.12.2001 cancelling the appointment of the petitioners was done arbitrarily and without following the due process of law, some of the cooks appointed on 5.11.2001, approached the Tamilnadu Administrative Tribunal. The Tribunal by its order dated 11.2.2003 in O.A.Nos.180 to 184 of 2002 and 140 to 150 of 2002 set aside the G.O.Ms.No.234 dated 21.12.2001 cancelling the appointment order in respect of the applicants before the Tribunal. The order of the Tribunal was implemented by the District Revenue Officer and Joint Director, Adi Dravidar Welfare, Chennai by order dated 20.12.2004 in Na.Ka.No.I4/30634/2004. The persons who had the benefit of the order of the Tribunal were reemployed on the time scale of pay of Rs.2,550-55-2,660-60-3,200/- and after adding other perquisites, the basic pay was taken and fixed as Rs.2,660/-. These persons are now regular employees in the time scale of pay as stated above. Thereafter, six other persons approached this court for similar relief in W.P.No.21345 of 2005. This court by order dated 30.6.2005 directed the Secretary to Government, Adi Dravidar and Tribal Welfare Department to consider their appeal on merits. The petitioners in the present writ petition made representation to the first respondent Government and to the other respondents in this writ petition to consider their claim for reemployment as in the case of the 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 directed the Commissioner, Adi Dravidar Welfare Department to appoint the https://hcservices.ecourts.gov.in/hcservices/ petitioners and other persons on consolidated pay of Rs.850/- per month. Consequent to the above said internal communication, on 9.11.2005 in the impugned proceedings 15 persons, who have been left out, were reemployed on a consolidated salary of Rs.850/- per month. In the impugned order, it is clearly stated that these persons were originally appointed on 5.11.2001 and they have been removed from service. 4. The grievance of the petitioners is that their original appointment is through the employment exchange and they were appointed on the time scale of pay. The order removing them from service was an arbitrary action by the respondent department based on a baseless and irrelevant complaint by a third party. The order cancelling the appointment has been set aside by the Tribunal at the behest of five persons and they were reemployed on a time scale of pay. The petitioners in the present case are also entitled to the same benefit (i.e.) time scale of pay on reemployment without discrimination. The impugned order so far it fixes the salary at Rs.850/- as consolidated pay is arbitrary and discriminatory. No reason has been given in the order as to why the time scale of pay granted to similarly placed persons is denied to the petitioners. On this premises, that part of the impugned order which deals with fixation of salary is challenged in the present writ petition. 5. On record there is no counter-affidavit filed. However, on instruction, learned Government Advocate submits that suitable steps will be taken to absorb these persons in the regular time scale of pay as and when vacancy arises. 6. The impugned order so far as it restricts the salary in a sum of Rs.850/- per month as consolidated pay cannot be sustained for the following reasons:- (i) At the time of appointment on 5.11.2001, the petitioners were appointed on the time scale of pay. (ii) The order cancelling the appointment in G.O.Ms.No.234 dated 21.12.2001 has been set aside by the Tribunal so far as five similarly placed persons is concerned and the Government has accepted and implemented the order. (iii) The five persons, who had the benefit of the order of the Tribunal and reemployment, were given time scale of pay and not consolidated pay. (iv) The petitioners, who were similarly placed are entitled to reemployment on time scale of pay as in the case of five persons who had the benefit of the order of the Tribunal. The reappointment order dated 28.12.2004 in Na.Ka.No.I4/30634/2004 in respect of the five persons is available in the typeset of papers. https://hcservices.ecourts.gov.in/hcservices/ (v) The Government has sought for an opinion from the Senior Standing Counsel and has accepted his view. Consequently, reemployment of the 15 persons was ordered. These persons on reemployment cannot be denied the time scale of pay without any just cause or reason. (vi) Further, in the order dated 9.11.2006 which is based on the direction of the Secretary to Government, there is no reason given as to why the salary of the petitioners is fixed at Rs.850/- per month as a consolidated pay. In the absence of any material to fix the salary at Rs.850/- per month (consolidated pay), the petitioner on reemployment should have the benefit of time scale of pay as in the case of similarly placed five persons who were appointed by order dated 28.12.2004 in Na.Ka.No.I4/30634/2004. (vii) It is not in dispute that even now the petitioners are working as cook in the respondent department in view of the vacancy existing as on date. Therefore, the plea of the respondents that they will be granted time scale of pay as and when regular vacancy arise cannot be accepted. When there is sufficient post available and the petitioners are working in such post, they are entitled to time scale of pay without discrimination. Petitioners have made out a case for appropriate relief. 7. In the result, the impugned order insofar as it restricts the salary at Rs.850/- per month (consolidated pay) is set aside and the petitioners will be entitled to the time scale of pay with continuity of service from the date of original appointment. As far as the relief 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 appropriate authority and the same shall be considered by the authority on its own merits. If any payment has been made with regard to other persons similarly placed, the petitioners can be given appropriate relief. The discretion to grant the amount is purely with the respondent department. The Writ Petition stands allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ts To 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.35536 1 cc To The Government Pleader, SR.36102 W.P.No.14514 of 2006 JRG(CO) SRA(19/08/2009) https://hcservices.ecourts.gov.in/hcservices/