IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.01.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.23428 to 23457 and 23544 of 2009 and M.P.Nos.1 of 2009 W.P.Nos.23428 to 23457 of 2009: R.Augustine Xavier Arockiasamy .... Petitioner in W.P.No.23428 of 2009 S.Selvaraj .... Petitioner in W.P.No.23429 of 2009 K.Govindasamy .... Petitioner in W.P.No.23430 of 2009 C.Sadaiyan .... Petitioner in W.P.No.23431 of 2009 M.Murugan .... Petitioner in W.P.No.23432 of 2009 E.Kesavalu .... Petitioner in W.P.No.23433 of 2009 V.Rajaraman .... Petitioner in W.P.No.23434 of 2009 R.Janardhanam ... Petitioner in W.P.No.23435 of 2009 J.Abdul Khader ... Petitioner in W.P.No.23436 of 2009 S.Murugan ... Petitioner in W.P.No.23437 of 2009 A.Sowcar Syedpeer ... Petitioner in W.P.No.23438 of 2009 R.Dhakshinamoorthy ... Petitioner in W.P.No.23439 of 2009 A.V.Bharathidhasan ... Petitioner in W.P.No.23440 of 2009 https://hcservices.ecourts.gov.in/hcservices/ G.Pothiappan ... Petitioner in W.P.No.23441 of 2009 R.Periyasamy ... Petitioner in W.P.No.23442 of 2009 A.L.Basheer Ahameed ... Petitioner in W.P.No.23443 of 2009 O.Basuvaraj ... Petitioner in W.P.No.23444 of 2009 M.Deenadayalan ... Petitioner in W.P.No.23445 of 2009 C.V.Ramesh ... Petitioner in W.P.No.23446 of 2009 M.Syed Abuthahir ... Petitioner in W.P.No.23447 of 2009 N.M.B.Shyam Sunder Babu ... Petitioner in W.P.No.23448 of 2009 P.Balasubramanian ... Petitioner in W.P.No.23449 of 2009 A.Mahalingam ... Petitioner in W.P.No.23450 of 2009 S.S.Ganesan ... Petitioner in W.P.No.23451 of 2009 V.Subramanian ... Petitioner in W.P.No.23452 of 2009 S.Gopu ... Petitioner in W.P.No.23453 of 2009 A.Yogaanadhan ... Petitioner in W.P.No.23454 of 2009 G.Pandian ... Petitioner in W.P.No.23455 of 2009 M.Anantharaman ... Petitioner in W.P.No.23456 of 2009 P.Kathirkamam ... Petitioner in W.P.No.23457 of 2009 Vs. https://hcservices.ecourts.gov.in/hcservices/ 1. The Government of Tamil Nadu represented by its Secretary Industries Department Fort St.George Chennai – 600 009 2. The Commissioner of Sugar 696, Anna Salai Nandanam Chennai – 600 035. ... Respondents 1 and 2 in W.P.Nos.23428 to 23457 of 2009 3. The Special Officer National Co-operative Sugar Mills Limited Alanganallur Madurai District – 625 502. .... Respondent No.3 in W.P.Nos.23428, 23432, 23447 and 23448 of 2009 3. The Administrator Chengalrayan Co-operative Sugar Mills Limited, Periyasevalai .. Respondent No.3 Villupuram District W.P.Nos.23429 & 23441 of 2009. 3. The Special Officer Kallakurichi – I Co-operative Sugar Mills Limited Moongilthuraipattu Villupuram District. .... Respondent No.3 in W.P.Nos.23430 and 23453 of 2009 3. The Special Officer Vellore Co-operative Sugar Mills Limited Ammundi Vellore District. .... Respondent No.3 in W.P.Nos.23436 and 23444 of 2009 3. The Administrator Kallakurichi – II Co.operative Sugar Mills Limited, Kachirayapalayam, Villupuram District. .. Respondent No.3 in W.P.Nos.23431,23434, 23442,23445, 23446, 23451,23455 and 23457 of 2009 and Respondent No.4 in W.P.No.23429 and 23456 of 2009 https://hcservices.ecourts.gov.in/hcservices/ 3. The Administrator Cheyyar Co.operative Sugar Mills Limited, Thenthandalam Annakkavoor Tiruvannamalai District- 604 401. .. Respondent No.3 in W.P.Nos.23433 & 23452 of 2009 and Respondent No.4 in W.P.No.23449 of 2009 3. Special Officer Dharmapuri District Co-operative Sugar Mills Limited Palacode Dharmapuri District. ... Respondent No.3 in 635 815 W.P.No.23438, 23443 of 2009 3. Special Officer Tirupattur Co-operative Sugar Mills Limited Kethandapatti Vellore District. ... Respondent No.3 in W.P.No.23454of 2009 3. The Administrator Tiruttani Co-operative Sugar Mills Limited Thiruvalengadu Tiruvallore District. ... Respondent No.3 in W.P.No.23439 of 2009 3. The Administrator M.R.Krishnamoorthy Co-operative Sugar Mills Limited Sethiathope Cuddalore District – 608 702. ... Respondent No.3 in W.P.No.23440, 23449 23456 of 2009 3. The Administrator Subramania Siva Co-operative Sugar Mills Limited Gopalapuram Dharmapuri District. ... Respondent No.3 in W.P.No.23450 of 2009 3. The Chairman & Managing Director Perambalur Sugar Mills Limited 696, Anna Salai Nandanam – 600 035. 4. The Chief Executive Perambalur Sugar Mills Eraiyur Post Perambalur – 621 133. ... Respondents No.3 and 4 in W.P.No.23435 of 2009 https://hcservices.ecourts.gov.in/hcservices/ 3. The Chairman & Managing Director Tamil Nadu Sugar Corporation Limited 696, Anna Salai Nandanam – 600 035. 4. The Chief Executive Arignar Anna Sugar Mills Kurungulam Post Thanjavur – 613 303. ... Respondents No.3 and 4 in W.P.No.23437 of 2009 W.P.No.23544 of 2009: J.Samuel Sugunaraj Anbunathan M.R.Krishnamurthy Co.operative Sugar Mills Limited Sethiathope- 608 702. ... Petitioner Vs. 1.The State of Tamil Nadu rep.by its Secretary Industries Department Fort St.George, Chennai 2.The Commissioner Department of Sugar 696, Anna Salai Nandanam, Chennai – 35. 3.The Administrator MRK Co.operative Sugar Mills Limited Sethiathope – 608 702 Chidambaram Taluk Cuddalore District. .... Respondents. Prayer: Petitions in W.P.No.23428 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (2) dated 17.2.2009 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" – Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade. https://hcservices.ecourts.gov.in/hcservices/ Petition in W.P.No.23455 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (3) dated 17.2.2009 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" – Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade. Petitions in W.P.No.23429 and 23430 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (2) dated 6.11.2008 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" – Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade. Petition in W.P.No.23442 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (2) dated 6.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" – Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade. Petitions in W.P.No.23446, 23450 and 23452 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 6.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" – Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade. https://hcservices.ecourts.gov.in/hcservices/ Petitions in W.P.No.23431, 23432, 23436, 23441,23444, 23447, 23448, 23451, 23454 & 23457 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 8.12.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" – Category supervisory staff with effect from the petitioner's date of joining in Supervisory "C" grade. Petitions in W.P.No.23433 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 19.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "B" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "B"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory"B" grade. Petitions in W.P.No.23434 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 17.2.2009 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "B" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "B"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory"B" grade. Petition in W.P.No.23435 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008(1) dated 17.2.2009 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay applicable to "B" – Category Supervisory staff working in the fourth respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "B"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory"B" grade. https://hcservices.ecourts.gov.in/hcservices/ Petition in W.P.No.23456 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 17.2.2009 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other "C"- Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade. Petition in W.P.No.23437 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 (4) dated 17.2.2009 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay on par with the other "C" – Category Supervisory staff working in the fourth respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" – Category supervisory staff with effect from the petitioner's date of joining in Supervisory"C" grade. Petitions in W.P.No.23438, 23440 and 23443 of 2009 are filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 19.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "C"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory "C" grade. Petition in W.P.No.23449 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 19.11.2008 and quash the same and consequently direct the second, third and fourth respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory "C" grade. https://hcservices.ecourts.gov.in/hcservices/ Petition in W.P.No.23439 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008-10 dated 6.10.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances applicable and payable to "C"- Category supervisory staff under the Common Cadre System with effect from the petitioner's date of joining in Supervisory "C" grade. Petition in W.P.No.23445 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008-10 dated 6.11.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory "C" grade. Petition in W.P.No.23453 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus to call for the records leading to the impugned order of the second respondent in Rc.No.22324/SL2/2008 dated 22.12.2008 and quash the same and consequently direct the second and third respondents herein to revise and re-fix the petitioner's scale of pay applicable to "C" – Category Supervisory staff working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Category supervisory staff with effect from the petitioner's date of joining in Supervisory "C" grade. Petition in W.P.No.23544 of 2009 is filed under Article 226 of the Constitution of India praying for a Writ of mandamus to direct the second and third respondents to revise and re-fix the petitioner's scale of pay on par with other "C" – Category Supervisors working in the third respondent Sugar Mills, enabling the petitioner to receive the scale of pay and allowances as that of the holders of the other said "C" Grade employees with effect from 1.3.1991. For Petitioner :: Mr.T.V.Krishnamachari in W.P.Nos.23428 to 23457 of 2009 https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in :: Mr.Mr.G.Raja W.P.No.23544 of 2009 For Respondents :: Mr.A.Arumugam,AGP for RR.1and 2 in all W.Ps Mrs.Thilagavathi for RR.3 and 4 C O M M O N O R D E R W.P.Nos.23428 to 23457 of 2009: Heard both sides. These writ petitioners are working in various posts coming under the "B" and "C" categories of the third respondent Co-operative Sugar Mills. The petitioners moved this Court earlier by filing writ petitions in W.P.Nos.24395 to 24376 of 2008. 2. As the issue involved in all these writ petitions is one and the same, the facts relating to the first writ petition in W.P.No.23428 of 2009 are taken up for discussion. The petitioner Mr.R.Augustin Xavier Arokiasamy was the petitioner in W.P.No.24395 of 2008. The prayer in the earlier writ petitions was for a direction to revise the pay scale to all supervisors of C-Grade employees. Those writ petitions were disposed of by a common order dated 13.10.2008. This Court, without going into the merits of the contentions, directed the second respondent – Commissioner of Sugar to dispose of the representations of the petitioners on merits in accordance with law. Pursuant to the said direction, the second respondent by the impugned order dated 17.2.2009 disposed of the representation of the petitioner and similar orders were passed in respect of other writ petitioners. In the operative portion of the said order, in paragraph Nos.6 and 7, he had observed as follows:- "....6) However, the post of Wireless Operator has not been brought under Common Cadre System and it is continued to be covered under Wage Board Scale and hence your claim to revise your pay on par with Government Pay Scales as in the case of other Supervisory Grade employees in Common Cadre System cannot be considered. 7) Regarding the Court Order issued in W.P.No.15192/2000, dt.22.4.2003 and in W.A.No.1089 and 4074 of 2004 dt: 12.7.2007, it is informed that, in the above Court Order, the Hon'ble High Court has directed only to revise and refix the pay scale of the Petitioner in the above Writ Petition. Also in the G.O.Ms.NO.123, Industries Department, dt: 30.5.2008, issued based on the above Court Order, directions were issued to the Commissioner of Sugar only to revise the pay scale of the Petitioner in the above Writ Petition and not ordered for revision of pay scales to all Supervisory "C" Grade employees and hence your request for revision of your pay scale in the post of Wireless Operator with effect from 13.2.1991 i.e., the date of joining in the post on par https://hcservices.ecourts.gov.in/hcservices/ with the Government scale of pay applicable to other Supervisory "C" Grade employees in Erstwhile Common Cadre System cannot be considered." Challenging the same, the petitioners have come forward to file the present writ petitions. 3. The petitioners were also inspired by the fact that some other employees of the Co-operative Sugar mills, who are similarly placed, have moved this Court with a batch of writ petitions, which came to be disposed of by a common order dated 2.9.2009. In those writ petitions, certain employees employed in various sugar mills in Tamil Nadu coming under the control of the second respondent challenged the similar orders passed by the Commissioner of Sugar before this Court and this Court gave the following direction as found in paragraph No.38 of the order, which reads as follows:- "38. In the result, the writ petitions are allowed in the following terms:- (1) The respondents are directed to revise the pay scale of the petitioners on par with the scale of pay of the erstwhile supervisory 'C' category employees, notionally fix the same from the date on which the other erstwhile supervisory 'C' category employees were given the benefit of pay revision and however, pay the arrears only from the month of September 2008 as indicated above. (2) It is, however, made clear that the employees in supervisory 'C' category, who have not claimed to be treated as common cadre employees, shall be treated to have exercised their option under Section 75 of the Act to remain in non-common cadre services and so they will not be entitled for the benefits of the common cadre services...." Therefore the petitioners claim that they are entitled for similar relief after setting aside the impugned order. 4. On notice from this Court, the third respondent has filed a counter affidavit dated 23.12.2009 together with typed set containing supporting documents. The first contention raised in the counter affidavit was that such writ petitions are not maintainable in the light of the larger Bench judgment of this Court in the case of K.MARAPPAN VS. THE DEPUTY REGISTRAR OF CO.OPERATIVE SOCIETIES, NAMAKKAL reported in 2006(4) CTC 689. When a similar objection was raised by this Court in the batch of writ petitions, in paragraph No.36, this Court has held that such an objection is not maintainable in the light of the subsequent Full Bench judgment of this Court in ANANDA SAYANAM,T.K. VS. THE JOINT REGISTRAR, CO- OPERATIVE SOCIETIES, VELLORE reported in 2007(5) CTC 1. In that case, in paragraph No.16, it was clearly held that for every alleged or imagined invasion of his rights, an employee of a Co- operative Society cannot move the Writ Court on the ground that his rights under Article 21 have been infringed and that Marappan's case will apply in such cases. But that observation was sought to https://hcservices.ecourts.gov.in/hcservices/ be overcome by the following passages found in paragraph No.37 of the order date 2.9.2009 of this Court, which runs as follows:- "37. In the case on hand, since large number of employees claim that they have been discriminated in the matter of scale of pay, as held by the Full Bench, since the rights of huge number of members are involved, the writ petition should be held to be maintainable. As held by the Hon'ble Supreme Court in Dineshan's case ((2008) 1 SCC 586) cited supra, since equal pay for equal work is a fundamental right, in the cases on hand, since such fundamental right is sought to be enforced, the writ petitions are maintainable and so, the contention of the respondents in this regard is rejected." 5. This Court is unable to agree with the statement made by the learned Judge. If there is an infringement of a fundamental right and such infringement or a complaint of equal pay for equal work involves enforcement of fundamental right, the writ petition is maintainable. On the other hand, the question of equal pay for equal work is only enshrined under Article 39-d of the Constitution, which is only a directive principles of State Policy and such directive principles under Article 37 are held to be not enforceable by this Court. However, the principles laid down are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making the laws. Therefore, the Larger Bench judgment of this Court Marappan's case referred surpa will squarely apply on the question of maintainability of the grievance is projected by the petitioner. It is not as if the employees are helpless. 6. The grievance projected by the petitioners was that under G.O.Ms.No.866 Industries Department dated 25.7.1984 the State Government had held that the second and third level officers working in the Co-operative Sugar Mills can be transferred from one Organisation to other Organisation and they can be treated as the common cadre and therefore when once the petitioners come under the common cadre coming under Supervisory C Grade there is no rhyme or reason that they should be paid different wages. Therefore, the order of the second respondent Commissioner is illegal and they are eligible for equal ay for equal work and the order should be set aside with proper directions. 7. It is seen from the impugned order that the G.O. relied on by the petitioners was subsequently rescinded by the State Government by G.O.Ms.No.834 Industries (MI.C.2) Department dated 3.12.1997 and in that Government Order, the State Government held that each Co-operative Sugar factory should function as a separate legal entity and a part of the employees who are classified as common cadre functioning under the administrative control of the Commissioner of Sugar should be removed and the