IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.12.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition Nos.30242 to 30245 of 2004 V.Veerabhaskaran ..Petitioner in W.P.No.30242 of 2004 D.Moses ..Petitioner in W.P.No.30243 of 2004 D.George Victor ..Petitioner in W.P.No.30244 of 2004 S.Gerald Vincent ..Petitioner in W.P.No.30245 of 2004 vs. State Bank of India, represented by its Assistant General Manager, Office Administration, Local Head Office, Office Administration Department, "Circletop House", Aparna Complex, No.16, College Lane, Chennai-600 006. ..Respondent in all the W.Ps. Writ Petition No.30242 of 2004 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the concerned records from the respondent, quash the order of the respondent dated 13.7.2004 bearing OAD No.420 and consequently direct the respondent to fix the pay scale of the petitioner on par with his immediate junior U.Kalaivanan, who is also Ex-Serviceman, who had joined the respondent bank after rendering service with the Indian Military like the petitioner, with effect from the date when the pay scale of U.Kalaivanan was fixed and pay all the arrears of wages. Writ Petition No.30243 of 2004 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the concerned records from the respondent, quash the order of the respondent dated 13.7.2004 bearing OAD No.417 and consequently direct the respondent to fix the pay scale of the petitioner on par with his immediate junior Kesavan.D., who is also Ex-Serviceman, who had joined the respondent bank after rendering https://hcservices.ecourts.gov.in/hcservices/ service with the Indian Military like the petitioner, with effect from the date when the pay scale of Kesavan.D., was fixed and pay all the arrears of wages. Writ Petition No.30244 of 2004 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the concerned records from the respondent, quash the order of the respondent dated 13.7.2004 bearing OAD No.419 and consequently direct the respondent to fix the pay scale of the petitioner on par with his immediate junior Kesavan.D., who is also Ex-Serviceman, who had joined the respondent bank after rendering service with the Indian Military like the petitioner, with effect from the date when the pay scale of Kesavan.D., was fixed and pay all the arrears of wages. Writ Petition No.30245 of 2004 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the concerned records from the respondent, quash the order of the respondent dated 13.7.2004 bearing OAD No.418 and consequently direct the respondent to fix the pay scale of the petitioner on par with his immediate junior U.Kalaivanan, who is also Ex-Serviceman, who had joined the respondent bank after rendering service with the Indian Military like the petitioner, with effect from the date when the pay scale of U.Kalaivanan was fixed and pay all the arrears of wages. For Petitioner in all W.Ps. : Mr.Balan Haridas For Respondent in all W.Ps. : Mr.K.Sankaran COMMON ORDER Writ Petition No.30242 of 2004 is filed to issue a Writ of Certiorarified Mandamus, calling for the records of the respondent in OAD No.420 dated 13.7.2004, quash the same and direct the respondent to fix the pay scale of the petitioner on par with his immediate junior U.Kalaivanan, who is also Ex-Serviceman, who had joined the respondent bank after rendering service with the Indian Military like the petitioner, with effect from the date when the pay scale of U.Kalaivanan was fixed and pay all the arrears of wages. 2. Writ Petition No.30243 of 2004 is filed to issue a Writ of Certiorarified Mandamus, calling for the records of the respondent in OAD No.417 dated 13.7.2004, quash the same and direct the respondent to fix the pay scale of the petitioner on par with his immediate junior Kesavan.D., who is also Ex-Serviceman, who had joined the respondent bank after rendering service with the Indian Military like https://hcservices.ecourts.gov.in/hcservices/ the petitioner, with effect from the date when the pay scale of Kesavan.D., was fixed and pay all the arrears of wages. 3. Writ Petition No.30244 of 2004 is filed to issue a Writ of Certiorarified Mandamus, calling for the records of the respondent in OAD No.419 dated 13.7.2004, quash the same and direct the respondent to fix the pay scale of the petitioner on par with his immediate junior Kesavan.D., who is also Ex-Serviceman, who had joined the respondent bank after rendering service with the Indian Military like the petitioner, with effect from the date when the pay scale of Kesavan.D., was fixed and pay all the arrears of wages. 4. Writ Petition No.30245 of 2004 is filed to issue a Writ of Certiorarified Mandamus, calling for the records of the respondent in, OAD No.418, dated 13.7.2004, quash the same and direct the respondent to fix the pay scale of the petitioner on par with his immediate junior U.Kalaivanan, who is also Ex-Serviceman, who had joined the respondent bank after rendering service with the Indian Military like the petitioner, with effect from the date when the pay scale of U.Kalaivanan was fixed and pay all the arrears of wages. 5. The petitioner Veerabhaskaran, is an Ex-serviceman retired from Military service on 1.8.1994. According to the affidavit filed, petitioner Veerabhaskaran was drawing salary as was fixed by the Fourth Central Pay Commission. On retirement, the petitioner applied to the respondent bank and was appointed as Control Room Operator (Clerical Category) by an order dated 27.3.1998. Respondent bank fixed the pay of the petitioner Veerabhaskaran as follows:- Sl.No. Pay Particulars Salary in Military Service Salary fixed in Bank Service 1 Basic Rs.1,275/- Rs.1,750/- 2 Class Pay Rs. 45/-(Spl.Pay) Rs. 108/- 3 D.A. Rs.1,373/- Rs.1,120/70 4 Good Service F Rs. 148/- Spl.A. Rs. 70/- 5 Interim Relief Rs. 100/- -- Total Rs.2,941/- Rs.3,048/70 6. The petitioner D.Moses, is an Ex-serviceman retired from Military service on 1.7.1994. According to the affidavit filed, petitioner D.Moses was drawing salary as was fixed by the Fourth Central Pay Commission. On retirement, the petitioner applied to the respondent bank and was appointed as Fireman cum Guard (Sub Ordinate Category) by an order dated 26.6.2000. Respondent bank fixed the pay of the petitioner D.Moses as follows:- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Pay Particulars Salary in Military Service Salary fixed in Bank Service 1 Basic Rs.1,070/- Rs.2,750/- 2 Class Pay Not furnished Rs. 207/- 3 D.A. Not furnished Rs. 794/84 Total Not furnished Rs.3,751/84 7. The petitioner D.George Victor, is an Ex-serviceman retired from Military service on 1.12.1994. According to the affidavit filed, petitioner D.George Victor was drawing salary as was fixed by the Fourth Central Pay Commission. On retirement, the petitioner applied to the respondent bank and was appointed as Fireman cum Guard (Sub Ordinate Category) by an order dated 28.6.2000. Respondent bank fixed the pay of the petitioner D.George Victor as follows:- Sl.No. Pay Particulars Salary in Military Service Salary fixed in Bank Service 1 Basic Rs.1,119/- Rs.2,750/- 2 Class Pay Rs. 15/-(Spl.Pay) Rs. 207/- 3 D.A. Rs.1,293/- Rs. 965/16 4 Interim Relief Rs. 100/- -- Total Rs.2,527/- Rs.3,922/16 8. The petitioner S.Gerald Vincent, is an Ex-serviceman retired from Military service on 31.5.1992. According to the affidavit filed, petitioner S.Gerald Vincent was drawing salary as was fixed by the Fourth Central Pay Commission. On retirement, the petitioner applied to the respondent bank and was appointed as Control Room Operator (Clerical Category) by an order dated 23.6.1998. Respondent bank fixed the pay of the petitioner S.Gerald Vincent as follows:- Sl.No. Pay Particulars Salary in Military Service Salary fixed in Bank Service 1 Basic Rs.1,205/- Rs.1,750/- 2 Class Pay Not furnished Rs. 70/- 3 D.A. Rs. 856/- Rs.1,234/88 Total Rs.2,061/- Rs.3,054/88 9. After retirement from Military service and joining the bank service, according to the petitioners, the Fifth Central Pay Commission recommendations were implemented, whereby persons who were still working in Indian Military service had the benefit of revised https://hcservices.ecourts.gov.in/hcservices/ scale of pay. Some of the Military staff who retired after the implementation of the Fifth Pay Commission joined the service of the respondent bank and their salaries were fixed based on the last drawn pay in the Indian Military Service as in the case of the petitioners. The petitioners realised that the juniors who retired from Military service and joined the respondent bank later are getting higher scale of pay and the petitioners who were seniors in the Military service and also seniors in the respondent bank service were receiving lesser pay. Therefore, they made representations through proper channel to the respondent bank stating that the juniors working in the respondent bank after discharge from Military service are drawing higher scale of pay in the various cadres and the petitioners are receiving far less and therefore, there is an anomaly, consequently prejudice. Petitioners, therefore, requested the respondent bank to step up the pay of the petitioners to bring it on par with that of the juniors on the principle of "equal pay for equal work". Such representations were considered by the respondent bank and by the impugned proceedings dated 13.7.2004, the plea for stepping up the pay was rejected and the reasons given in the impugned order, which is brief but succinct, is as follows:- "Please refer your letter dated 10.02.2004 on the above subject. 02. We have examined in detail regarding the 'pay anomaly' referred to in your letter, i.e., junior employees drawing higher pay than the senior employees. As you are aware, the fitment of pay for Ex-servicemen joining the Bank is done through protection of pay plus D.A. drawn by him at the time of the release from Armed forces, as per Govt. guidelines. Accordingly, the fitment of your pay as well as those Ex-servicemen who joined the Bank subsequently was done, based on the above principle. It is possible that the Ex-servicemen who joined the Bank later, got the benefit of the 5th Pay Commission pay revision and consequently their pay was higher when they joined the Bank, resulting in higher fitment in the Bank. It is apparent that the anomaly as referred to in your letter is due to the implementation of 5th Pay Commission Report and further advise that the benefits of 5th Pay Commission cannot be extended to a person who has retired from the army service, before the implementation of 5th Pay Commission and hence we are unable to accede to your request." All the four orders are similar as above. Aggrieved by this, present writ petitions have been filed. https://hcservices.ecourts.gov.in/hcservices/ 10. According to the learned counsel for the petitioners, petitioners Mr.V.Veerabhaskaran and Mr.S.Gerald Vincent had put in more number of years of service in Military and after retirement from Military, they have joined the respondent bank and are seniors to the subsequent entrants, viz., one Mr.U.Kalaivannan and one Mr.D.John Kennedy in the clerical cadre and Mr.K.Chandrasekar, Mr.S.Sounderrajan and Mr.D.Kesavan, in the subordinate cadre. In respect of the petitioners Mr.D.Moses and Mr.George Victor, they are seniors to the subsequent entrants, viz., one Mr.D.Kesavan, S.Soundarrajan, Mr.Moorthy and Mr.A.Joseph. At the time of entry of the above stated persons who joined the services of the respondent bank subsequent to the Petitioners, the pay fixed by the respondent bank is much higher than the pay drawn by the petitioners. The Juniors were getting higher salary than the seniors for equal work done. The petitioners knowing that the differentiation in the fixation of pay is consequent to the implementation of the Fifth Pay Commission, have come to this Court seeking the remedy to step up their pay so as to set right the anomaly as above. 11. The respondent bank on notice have filed a counter- affidavit stating that the bank is bound by the circular in F.No.2/8/78-SCT(B) dated 28.1.1983 issued by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi. The Circular is addressed to the Chairman and Managing Directors of 20 Nationalised Banks and Chairman and Managing Directors of other banks. The Circular has been issued in partial modification of the guidelines already issued in the years 1980 and 1982 and it deals with fixation of pay for Ex-Servicemen reemployed in Public Sector Banks. 12. Prior to 28.1.1983, the pay protection was given taking into consideration the total emoluments (i.e.), pay plus D.A. last drawn by the Ex-Servicemen before their retirement from Armed Forces. On and from 28.1.1983, the modified Circular reads as follows and the same is set out in para 2 of the Circular:- "2. In partial modification of the guidelines, conveyed through the aforesaid letters, it has been decided that: (i) In respect of ex-servicemen absorbed in bank's service prior to September 1978, if no recoveries were made on account of pension and pension equivalent of gratuity in excess of Rs.125/- p.m., such recovery may not be made with retrospective effect. However, in future the adjustment of pension will be made in accordance with the Department of Expenditure OM No.18(34)-E III(B)/57 dated 25.11.1958 (copy enclosed) read https://hcservices.ecourts.gov.in/hcservices/ with IBA's circular No.PD/76/589/865 dated 28.4.1982. (ii) The pay fixation in the case of ex- servicemen who joined Bank's service after the revision of pay scales in September, 78, will however be on the basis of protection of "pay" (instead of 'pay + DA') drawn by them prior to retirement. In other words, their pay fixation will be in accordance with the following office memorandum issued by the Ministry of Finance, Dept. of Expenditure: 1.OM No.18(34)-E III(B)/57 dated 25.11.1958 2.OM No.7(34)-E III(B)/62 dated 16.1.1964 3.OM No.5(14)-E III(B)/77 dated 19.7.1978" (emphasis supplied) In other words with effect from 28.1.1983, the pay fixation of the Ex-servicemen who join the respondent bank will be on the basis of the pay drawn by them prior to retirement instead of Pay + D.A., which was applied earlier. In terms of the above said Circular, the petitioner in each one of the cases have been granted the benefit of pay protection on the basic pay drawn in the Military service. 13. In the case of the petitioner Mr.Veerabhaskaran, his basic pay in the Military service was at Rs.1,275/- whereas the bank fixed his basic pay at Rs.1,750/-. In the case of Mr.S.Gerald Vincent, his basic pay drawn in the Military service was Rs.1,205/- whereas the bank fixed his basic pay at Rs.1,750/-. In the case of Mr.D.Moses, his basic pay drawn in the Military service was at Rs.1070/- whereas the bank fixed his basic pay at Rs.2,750/-. In the case of Mr.D.George Victor, his basic pay drawn in the Military service was at Rs.1,119/- whereas the bank fixed his basic pay at Rs.2,750/-. The total emoluments including D.A. and other allowances at the time of entry into the bank has been done in terms of the Circular dated 28.1.1983 referred to above. 14. According to the respondent, at the time of entry of Mr.U.Kalaivanan, Mr.D.John Kennedy, Mr.K.Chandrasekaran and Mr.D.Kesavan, their basic pay was fixed in the bank on the basis of the last drawn basic pay in the Military service. In the same manner, the basic pay of Mr.S.Soundarrajan, M.Moorthy and Mr.A.Joseph was also fixed. The anomaly as contended by the petitioners themselves in their representations is because of the implementation of the Fifth Pay Commission whereby the junior officers got the benefit of higher basic pay in the Military service and consequently, they are given the pay protection in terms of the Circular dated https://hcservices.ecourts.gov.in/hcservices/ 28.1.1983. This factor has been explained in the impugned proceedings of the bank. There is no other special reason for the bank to deny petitioners claim and the bank is bound by the Circular issued by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi. The bank cannot step up the pay of the juniors assuming for a moment that the anomaly as pointed out by the petitioners is apparent on the face of it. 15. In this case on facts, there is no dispute that the basic pay fixed on entry into bank service is on the basis of basic pay drawn in the Military service and the pay protection is granted in terms of Circular dated 28.1.1983 issued by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi for all persons. Petitioners have not pointed out any rule or provision of law that has been breached by the respondent bank. 16. Petitioners counsel relies upon various decisions of the Court to state that the anomaly should be rectified as it is causing serious prejudice to the petitioners, inasmuch as the juniors are receiving higher pay. 17. Learned counsel for the petitioners' plea is that higher basic pay fixed by the bank to the juniors will be arbitrary and opposed to Article 14 of the Constitution of India. He further submits that the petitioners and their juniors on the same cadre are performing same duties and therefore, for equal work, they are entitled to equal pay. He relies upon Article 39(d) of the Constitution of India. 18. Learned counsel for the petitioners relies the following decisions:- (i) Union of India and others – vs. - P.Jagdish and others reported in 1997 Supreme Court Cases (L & S) 701 to state that when the juniors are getting higher slab of pay, the pay of the seniors should be stepped up to rectify anomaly keeping in mind the Article 39(d) of the Constitution of India. (ii) Punjab State Electricity Board and others – vs. - Gurmail Singh reported in (2008)2 Supreme Court Cases (L & S) 539 to state that any anomaly in pay by a person holding higher post as against the higher pay received by the person holding lower post can be interfered by the Court. (iii) Gurcharan Singh Grewal and another – vs. - Punjab State Electricity Board and others reported in (2009)3 Supreme Court Cases 94 to state the proposition that a senior cannot be paid lesser salary than his junior https://hcservices.ecourts.gov.in/hcservices/ 19. Per contra, Thiru K.Sankaran, learned counsel appearing for the respondent bank relied upon the case in Union of India – vs. - S.Soundara Rajan reported in (1980)3 Supreme Court Cases 125 and submitted that in cases where there is an anomaly in pay due to some peculiar circumstances, it cannot be said that there is a breach of Article 14 of the Constitution. He referred to para 4 of the decision and it reads as follows:- "It is equally important to remember the well established proposition that there cannot be a case of discrimination merely because fortuitous circumstances arising out of some peculiar developments on situations create advantages or disadvantages for one group or the other although in the earlier stages they were, more or less, alike. If one class has not been singled out for special treatment, the mere circumstances of advantages accruing to one or the other cannot result in breach of Article 14 of the Constitution. On this basis we would agree with the reasoning of the High Court of Madras and so declare the law correctly." He also relied upon the case in State of Andhra Pradesh and others – vs. - G.Sreenivasa Rao and others reported in (1989)2 Supreme Court Cases 290 and stated that even though Article 39(d) of the Constitution of India provides equal pay for equal work, it cannot be said that in all cases, the principle will apply, because the fixation of pay for one or other person may depend on various factors, like statutory rules, executive instructions and other external factors as in the present case the implementation of the Fifty Pay Commission, which will play a major role for deciding how the pay will be fixed at the time of entry into banking service. Therefore, the petitioners cannot claim that they should be given the benefit of stepping up of pay on the principle of "equal pay for equal work". There are certain factors and facts which are not in dispute which disentitle the petitioners from pay parity from that of their juniors as in the present case. The observation of the Apex Court in the aforesaid decision will be squarely applicable to the facts of the present case. Paras 13 and 15 reads as follows:- "13. The factual basis in all these appeals is identical. The facts clearly show that in every case the pay fixation of the junior was done under the Fundamental Rules and there were justifiable reasons for fixing the junior at a higher pay than his seniors in the cadre. It was not disputed that the said pay fixation was in conformity with fundamental Rules. Neither before us nor before the Courts below the validity https://hcservices.ecourts.gov.in/hcservices/ of Fundamental Rules were challenged by any of the parties. Without considering the scope of these Rules and without adverting to the reasons for fixing the juniors at a higher pay, the High Court and the Tribunal have in an omnibus manner come to the conclusion that whenever and for whatever reasons a junior is given higher pay the doctrine of 'equal pay for equal work' is violated and the seniors are entitled to the same pay." "15. "Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal." 20. The Court, having considered the anomaly as pointed out by the petitioners, and on considering the Ministry's Circular and the decisions of the Apex Court, is not inclined to accept petitioners' plea. On facts, there is no dispute that the Petitioners' basic pay drawn at the Military service was on the basis of the pay fixed during the Fourth Pay Commission. Petitioners after retirement from Military service applied for reemployment in the respondent bank and they were issued with individual appointment orders and their pay was fixed based on the Circular dated 28.1.1983 issued by the Government of India, Ministry of Finance, Department of Economic Affairs https://hcservices.ecourts.gov.in/hcservices/ (Banking Division), New Delhi protecting their basic pay at the time of entry into the bank. In this case, the basic pay fixed by the bank is marginally higher than the basic pay drawn in the military service. The petitioners are not aggrieved at the time of entry into the respondent bank service that there is an anomaly in the pay. The dispute or the issue arose only when the juniors who had the benefit of higher basic pay consequent to the implementation of Fifth Pay Commission, entered into the respondent bank service by way of reemployment after retirement from the Military service. Till such time, petitioners had no grievance that the Circular dated 28.1.1983 issued by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi is bad, arbitrary or unreasonable. 21. The grievance as has been pointed out by the petitioners is because of the anomaly consequent to the higher pay drawn by the juniors