IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.03.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.27277 to 27296, 27349 to 27356, 27459 to 27466, 27577 to 27586, 27645 to 27653 and 27671 to 27681 of 2010 and M.P.Nos.1 to 1 (65) and 2 to 2 (65) of 2010 S.Balasubramanian .. Petitioner in W.P.No.27277 of 2010 N.Senthilkumar . . Petitioner in W.P.No.27278 of 2010 R.Velusamy .. Petitioner in W.P.No.27279 of 2010 S.Ramasamy .. Petitioner in W.P.No.27280 of 2010 H.Suresh .. Petitioner in W.P.No.27281 of 2010 K.Kannan .. Petitioner in W.P.No.27282 of 2010 L.Kumar .. Petitioner in W.P.No.27283 of 2010 R.Mugundhan .. Petitioner in W.P.No.27284 of 2010 M.Jagadeesan .. Petitioner in W.P.No.27285 of 2010 M.Somasuntharam .. Petitioner in W.P.No.27286 of 2010 M.Vanangamudi .. Petitioner in W.P.No.27287 of 2010 C.Kesavan .. Petitioner in W.P.No.27288 of 2010 K.Kumar .. Petitioner in W.P.No.27289 of 2010 https://hcservices.ecourts.gov.in/hcservices/ P.Banumathy .. Petitioner in W.P.No.27290 of 2010 C.Kumar .. Petitioner in W.P.No.27291 of 2010 S.Abdul Latheef .. Petitioner in W.P.No.27292 of 2010 S.Vaithilingam .. Petitioner in W.P.No.27293 of 2010 S.Murugan .. Petitioner in W.P.No.27294 of 2010 R.Nagarajan .. Petitioner in W.P.No.27295 of 2010 T.Durairaj .. Petitioner in W.P.No.27296 of 2010 A.James .. Petitioner in W.P.No.27349 of 2010 V.Rajkumar .. Petitioner in W.P.No.27350 of 2010 K.Indiran .. Petitioner in W.P.No.27351 of 2010 R.N.Sivakumar .. Petitioner in W.P.No.27352 of 2010 D.Ravi .. Petitioner in W.P.No.27353 of 2010 S.Engineer J.Babu .. Petitioner in W.P.No.27354 of 2010 A.D.Maria Paul Bosco .. Petitioner in W.P.No.27355 of 2010 N.Senthilkumar .. Petitioner in W.P.No.27356 of 2010 S.Srinivasan .. Petitioner in W.P.No.27459 of 2010 P.Ravikumar .. Petitioner in W.P.No.27460 of 2010 https://hcservices.ecourts.gov.in/hcservices/ T.Damodaran .. Petitioner in W.P.No.27461 of 2010 S.Athikesavalu .. Petitioner in W.P.No.27462 of 2010 A.Mahalingam .. Petitioner in W.P.No.27463 of 2010 K.Ravikulan .. Petitioner in W.P.No.27464 of 2010 V.S.Sivanandam .. Petitioner in W.P.No.27465 of 2010 K.Balachandiran .. Petitioner in W.P.No.27466 of 2010 S.Gajendra Babu .. Petitioner in W.P.No.27577 of 2010 M.Sivakumar .. Petitioner in W.P.No.27578 of 2010 D.Arulkumar .. Petitioner in W.P.No.27579 of 2010 N.Murugesan .. Petitioner in W.P.No.27580 of 2010 J.Padmanaban .. Petitioner in W.P.No.27581 of 2010 R.Natarajan .. Petitioner in W.P.No.27582 of 2010 M.A.Prabhavathi .. Petitioner in W.P.No.27583 of 2010 S.Magesh .. Petitioner in W.P.No.27584 of 2010 R.Gunasekaran .. Petitioner in W.P.No.27585 of 2010 K.Amudhan .. Petitioner in W.P.No.27586 of 2010 M.N.Suresh .. Petitioner in W.P.No.27645 of 2010 A.Murugan .. Petitioner in W.P.No.27646 of 2010 https://hcservices.ecourts.gov.in/hcservices/ S.P.Ranganathan .. Petitioner in W.P.No.27647 of 2010 Cruz Antony Clarence Motha .. Petitioner in W.P.No.27648 of 2010 G.Maheswari .. Petitioner in W.P.No.27649 of 2010 S.Anandan .. Petitioner in W.P.No.27650 of 2010 V.Kannapiran .. Petitioner in w.P.No.27651 of 2010 D.Krishnasamy .. Petitioner in W.P.No.27652 of 2010 R.N.Damodarun .. Petitioner in W.P.No.27653 of 2010 C.Vetriselvan .. Petitioner in W.P.No.27671 of 2010 J.Padmanabhanan .. Petitioner in W.P.No.27672 of 2010 M.S.Dinakaran .. Petitioner in W.P.No.27673 of 2010 S.Murugaiyan .. Petitioner in W.P.No.27674 of 2010 D.Selvam .. Petitioner in W.P.No.27675 of 2010 D.Baskaran .. Petitioner in W.P.No.27676 of 2010 R.Murugiah .. Petitioner in W.P.No.27677 of 2010 S.Subramani .. Petitioner in W.P.No.27679 of 2010 G.Govindaraju .. Petitioner in W.P.No.27678 of 2010 D.M.Sankar .. Petitioner in W.P.No.27680 of 2010 Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.The Secretary to Government of India, Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises, Block 14, C.G.O. Complex, Lodi Road, New Delhi-110 003. 2.The Secretary to Government of India, Ministry of Petroleum & Natural Gas, Lodi Road, New Delhi. 3.The Chairman, Indian Oil Corporation, Indian Oil Tower, 3079/3, J.D.Ditto Marg, Sadiq Nagar, New Delhi-110 049. 4.The Managing Director, Chennai Petroleum Corporation Ltd., Manali, Chennai-68. 5.The General Manager, Chennai Petroleum Corporation Ltd., Human Resources Division, Manali, Chennai-68. 6.The Senior Manager (Personnel), Chennai Petroleum Corporation Ltd., Manali, Chennai-68. .. Respondents in all these writ petitions All these writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent in connection with the impugned orders issued by the first respondent in No.2(70)/08-DPE(WC)-GL XVI/08 dated 26.11.2008, F.No.2(70)/08-DPE (WC)-GL IV/09, dated 09.02.2009, No.2(70)/08-DPE GL-VII/09, dated 02.04.2009, 5th respondent in Notice No.PD/54/2009, dated 08.07.2009, 2nd respondent in No.G-38011/9/2009-Fin.III dated 03.02.2010 and the consequential orders issued by the 5th respondent in No.PD/15/2010, dated 30.03.2010 and the sixth respondent in Ref.:HRD:05:182 dated 20.08.2010 and Ref.HRD:05:182, dated 24.08.2010 and quash the same insofar as refixation of the pay and the recovery of alleged excess pay and to further direct the respondents to fix appropriate pay scale, protecting the salary of the petitioners on promotion by affording necessary pay protection by way of personal pay to the post of Officer/Engineer Grade-A. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.K.Venkataramani, SC for Mr.M.Muthappan in all W.Ps. For Respondents : Mr.N.R.Rajagopalan, CGSC for RR1 and 2 Mr.Muthukumarasamy, SC for RR4 to 6 for M/s.Dua Associates (in all W.Ps.) No appearance for R-3 - - - - COMMON ORDER All these writ petitions were filed by the Officers of the Chennai Petroleum Corporation Limited (for short CPCL), challenging the orders of the first respondent Government of India, Ministry of Heavy Industries and Public Enterprises, dated 26.1.2008, 09.02.2009 and 02.04.2009 and the fifth respondent's notice, dated 8.7.2009 as well as the second respondent's letter, dated 03.02.2010 and the consequential order of the fifth respondent, dated 30.3.2010 and the sixth respondent, dated 20.8.2010 and 24.8.2010 and seeks to quash all these orders with a further direction to the respondents to fix appropriate pay scale protecting the salary of the petitioners on promotion by affording necessary pay protection by way of personal pay to the post of Officer/Engineer Grade-A. 2.When the matter came up on 01.12.2010, notices were taken by Mr.R.Senthilkumar of M/s.Dua Associates. This Court had granted an order of status quo for a limited period. Subsequently, the said order came to be extended from time to time. Finally when the matter came up on 27.1.2011, all these matters were grouped together and the order of status quo was extended. On 02.12.2010, the learned Central Government Standing Counsel was directed to be served. Accordingly, Mr.N.R.Rajagopalan, the Central Government Standing Counsel was also served. On behalf of respondents 4 to 6, a counter affidavit, dated 6.12.2010 was filed together with typed set of documents. 3.Heard the arguments of Mr.K.venkataramani, learned Senior Counsel appearing for Mr.M.Muthappan, learned counsel appearing for petitioners, Mr.R.Muthukumarasamy, learned Senior Counsel appearing for M/s.Dua Associates for respondents 4 to 6 and Mr.N.R.Rajagopalan, learned Central Government Standing Counsel appearing for respondents 1 and 2. 4.It is the second round of litigation by the petitioners. In the earlier round of litigation, the petitioners sought to challenge an order, dated 8.7.2009 issued by the CPCL as well as the consequential order of refixation of pay and recovery, dated 20.8.2010. Pending those writ petitions, this court had granted interim stay of recovery alone. Therefore, the petitioners' pay were https://hcservices.ecourts.gov.in/hcservices/ refixed as per the impugned circular. Finally, the entire batch of cases came to be disposed of by an order dated 18.11.2010. The operative portion of the order as found in paragraphs 5 and 6 reads as follows: "5.The Government of India is not made as a party in these writ petitions. Further the orders issued by the Government of India, based on which the impugned orders are passed, are now known to the petitioners and copies are also made available to the petitioners. Unless those orders are challenged, no relief could be granted to the petitioners merely because they have challenged the consequential orders. It is well settled proposition of law that the consequential orders alone cannot be challenged without challenging the basic orders. 6.In view of the above, these writ petitions are not maintainable due to the non-challenge to the basic orders. Since the Government of India orders are now handed over to the learned counsel for the petitioners and one of the petitioners has filed writ petition challenging all the orders, as per the statement made by the learned Senior Counsel for the petitioners today, and having regard to the recovery order made to all the petitioners, who are also willing to challenge the said orders along with recovery orders by way of comprehensive writ petitions, these writ petitions are permitted to be withdrawn with liberty to the petitioners to challenge the basic orders as well as the consequential orders in a separate writ petition. Since recovery orders are already stayed from 25.10.2010 and the petitioners are in service, who are having several years of service in the respondent Company, no prejudice will be caused to the respondents by keeping the impugned recovery in abeyance for two weeks. Hence the respondents shall not effect recovery for a period of two weeks from today. It is open to the respondents to oppose the writ petition as well as stay petition as and when any fresh writ petition is filed by raising all its contentions and all contentions are left open to be decided in separate writ petitions filed or to be filed by these petitioners." Therefore, the petitioners have filed the present batch of writ petitions seeking to challenge all orders starting from 26.11.2008 issued by the first respondent Government of India. 5.By the office memorandum, dated 26.11.2008, the Government of India had revised the pay scales for Board level and below Board level executives as per the annexure. This revision was made according to the recommendation fo the 2nd Pay Revision Committee. The previous revision of such executives took place during the year 1997. It was decided that subsequent to the pay revision will be after a period of 10 years. For the purpose of 2nd Pay Revision, the https://hcservices.ecourts.gov.in/hcservices/ Government of India had appointed Justice M.Jagannadha Rao, a Retired Judge of the Supreme Court. After getting his report, the Office Memorandum came to be issued. 6.The first change that was made in the order was to bring uniformity. Its annexure provided revised scales of pay for the Board and Below Board level executives of all Central Public Sector Enterprises (CPSEs) and provided 10 Grades starting from E0 to E9. Since different public sector enterprises would have had different scales at that time, in paragraph 15 of the Office Memorandum, it was stated as follows: "15.Pay Revision in respect of non-unionised supevisory staff: The revision of scales of pay for non-unionised supervisory staff may be decided by the respective Board of Directors of the CPSEs." 7.While bringing the entire Below Board level Executives into 10 grades and giving power of revision to the Board of Directors of concerned CPSEs, the fitment benefit was also made as per paragraph 2 of the Office Memorandum, which reads as follows: "2.Fitment Benefit : (i)A uniform fitment benefit @ 30%, on basic pay plus DA @ 68.8% as on 01.01.2007 would be provided to all executives. The aggregate amount would be rounded off to the next ten rupees and pay fixed in the revised pay scale. (ii)If any extra ordinary increment(s) and / or increase in the pay in respect of executives / non unionized supervisors have been granted with retrospective effect, which affects the revision of pay as on 1.1.2007, such increment and / or increase in pay will be ignored for the purpose of fitment pay revision. (iii)Where executives drawing pay at two or more consecutive stages in an existing scale get bunched, then, for every two stages so bunched, benefit of one increment shall be given." 8.Subsequent to the said Office Memorandum, another Office Memorandum, dated 2.4.2009 came to be issued. Some CPSEs pointed out different grades in their establishments and their desirability of introducing intermediary pay scales. But the same was negatived. In paragraph (vi), the Office Memorandum states as follows: "vi)Introduction of intermediary pay scales to correspond with existing pay scales : It has been decided that there will be no change in the ten pay scales of below board level posts as indicated in O.M. dated 26.11.2008 and there is no justification for introducing intermediary pay scales. If there have been any aberrations, they need to be corrected. Every officer has to be fitted into the corresponding new pay scale. However, if there is any exceptional case regarding intermediary pay scales, the same may be https://hcservices.ecourts.gov.in/hcservices/ referred by the administrative Ministry concerned to the DPE. The issue will be decided by DPE with the concurrence of Department of Expenditure, on a case to case basis without altering the minimum and the maximum of the revised pay scale." 9.It was based upon these two orders, the scales of pay of the petitioners were revised. In the case of the respondents CPCL, Below Board level executives were comprising of Grade A to G, namely seven grades were there. But, if the Office Memorandum of the Central Government pursuant to the recommendation of the 2nd Pay Revision Committee has to be implemented, then the seven grades has to be re-done in the case of executives of the CPCL. Therefore, by proceedings, dated 8.7.2009, it was informed that the pay scales of Grades A,B,F and G will be notified subsequently after a decision is taken on intermediary pay scales in terms of Presidential Directives as a reference was made b the Ministry of Petroleum and Natural Gas. The coverage of revised pay was given to the Officers who joined the Company or promoted or appointed from non-officer to officer category on or after 1.1.2007 and they will be placed in the revised scales from the date of their joining or promotion as an Officer. It was specifically indicated that those officers will not be eligible for fitment benefit under pay revision. 10.With reference to Officers in Grades A,B,F and G for whom revised pay scales were not finalised and were given provisional fitment, in paragraph 3.3 of the proceedings, dated 8.7.2009, it was stated as follows: "3.3.Pay of Officers in Gr.A,B,F & G for which revised pay scales have not yet been finalized, would be fixed as per fitment formula on provisional basis. Pay of an Officer on promotion to or from any of these grades to a higher grade for which revised pay scale is available, shall also be fixed on provisional basis. For Gr.A,B,F & G provisional pay shall not exceed Rs.46,500/-, Rs.50,500/-, Rs.68,500/- and Rs.71,000/- respectively. " (Emphasis added) 11.Similarly, non supervisory employees who were promoted on or after 1.1.2007 from non-officer grade to officer grade, were permitted to draw basic pay of Rs.23,000/- on provisional basis. Once again, it was indicated that they will not be eligible for any fitment benefit. Thereafter, the Government of India, Ministry of Petroleum and Natural Gas had issued a circular, dated 3.2.2010 informing that none of the CPSEs should deviate from the Office Memorandum. In the operative portion of the circular, it was indicated as follows: "DPE OM dated 2.4.2009, which is based on the report of the Committee of Ministers headed by Home Minister, conveys the decision of the Government that there will be no change in the 10 pay scales of the below Board level posts as indicated in OM dated 26.11.2008 and that there is no justification for introducing intermediary pay scales. If there is any https://hcservices.ecourts.gov.in/hcservices/ exceptional case regarding intermediary pay scales, the same has to be referred by the Administrative Ministry concerned to the DPE and it will be decided by DPE with the concurrence of DOE without altering the minimum and the maximum of the revised pay scales. It is found that the proposal of MoP&NG provides for either a change in the minimum or in the maximum, or change in both the minimum and the maximum of the scale. Para 2(vi) of DPE OM dated 02.04.2009 does not permit any alteration in the minimum and the maximum of the revised pay scales. Further, the government policy as stated in OM dated 02.04.2009 is that if there have been any aberrations, they need to be corrected. In view of the above, there is no scope to agree to the proposal of MoP&NG." (Emphasis added) 12.Once again, the CPCL by its proceedings, dated 30.3.2010 had fixed pay scales for supervisory grades A,B,F and G with effect from 1.1.2007. The following pay was fixed for Grades A,B,F and G which reads as follows: 3.0.Considering the above decision of DPE, the issue has been re-examined and the following revised pay scales are approved for Grades A,B,F & G: Grade Existing Pay Scales (w.e.f. 1.1.97) Revised Pay Scales (w.e.f. 1.1.07) A 12000-17500 24900-50500 B 13750-18700 29100-54500 F 19000-24750 51300-73000 G 19500-25600 51300-73000 13.It could be seen that the the lowest Grade A in the CPCL were given the scale available to E3 as suggested by the Office Memorandum of the Government of India. Thus they were given starting pay of scale of Rs.24900/- upto Rs.50500/-. According to these proceedings, the petitioners' pay was fixed after giving notional fitment as an annual increment by proceedings, dated 20.8.2010 by the individual orders given to the petitioners. It was also indicated that fixation done by the Office Order, dated 20.8.2010 will be in supersession of the earlier communications with reference to fixation of basic pay. The petitioners were also notified that they will be governed by the terms and conditions contained in Circular, dated 8.7.2009. 14.Subsequent to the said pay fixation order, the petitioners were notified by a further order, dated 24.8.2010 that on account of refixation, the excess amount to be paid will have to be recovered. Since some of the officers have requested that recovery at one stroke may cause great hardship, it was decided by https://hcservices.ecourts.gov.in/hcservices/ the CPCL that arrears of 50% of the DA merger with pre-revised basic pay and cafeteria allowance with effect from 26.11.2008 upto 50% revised basic pay, payable shall be adjusted first and the balance will be recovered in 48 months. They were also given an option of writing to the Personnel Department to pay the arrears with lesser number of installments. They were further informed that 25% of the Performance Related Pay (PRP) will be adjusted from the recoverables and the monthly recovery of balance months will get reduced. The recoveries due to additional employer contribution to provident fund and defined contribution superannuation fund will be adjusted in the next 10 months. Further, an option was made to them for adjusting excess contribution in the next 10 months or retain the same in the respective fund as voluntary contribution. 15.The petitioners have strongly contended that they never requested for the alleged excess payments to be recovered in installments. The statement made was contrary to truth. But the respondents in paragraph 23 of their counter affidavit filed in the earlier writ petitions, had averred as follows: "23.With regard to averments in paragraph 9 the same are denied. It is submitted that Chennai Petroleum Officers Association, in which the Petitioners are members, has submitted a request vide letter dated 26.08.2010 to postpone recoveries from the salaries of the Petitioner...." In support of their averments, they have also produced a letter written by the Chennai Petroleum Officers Association with the office endorsement made thereunder. 16.However, it is unnecessary to go into the controversy as to whether the petitioners through their association have requested for recoveries on easy installments or not? If the petitioners' challenge to the impugned order is based on sound legal grounds, then the question of recovery itself will not arise. But if they failed in their attempt to impugn the circulars, then the question of recovery by installments may loom large. 17.Mr.K.Venkataramani, learned Senior Counsel stated that since the petitioners have been litigating over the issue and have come for the second time, they would not have been a party to agree for the excess pay deducted on the basis of a letter written by their association. On the other hand, they intent to contest the matter and there cannot be a waiver or acquiescence by the petitioners. The learned Senior Counsel submitted that the Central Government had not defended itself by filing appropriate counter. But, it is unnecessary to wait for any counter affidavit on the part of the Central Government since in the office memorandum dated 26.11.2008, in paragraph 15, they have left the matter of revision of scales for non unionised supervisory staff to be decided by the respective Board of Directors. Therefore, the Board of Directors if they decide the matter in accordance with law, the fact that they had decided to follow the Central Government's office memorandum will become irrelevant. https://hcservices.ecourts.gov.in/hcservices/ 18.In the present case, the stand taken by respondents 4 to 6 was that it was a conscious decision by the Board to fix salary and rationalize the grade on par with other CPSEs and what was paid to the petitioners earlier was only on provisional basis and it was specifically indicated. Therefore, there was no vested right accrued to them in the matter of pay fixation. If they had received amounts on the basis of provisional orders, it is needless to state that such orders will be subject to their final determination. In essence, all the officers were put on notice right from the office memorandum of the Central Government granting 2nd Pay Revision pursuant to the recommendation made by Justice M.Jagannadha Rao Committee. 19.Mr.K.Venkataramani, learned Senior counsel submitted that the petitioners were given pay fixation pursuant to promotion. Subsequently, fitments were also given on the basis of the revised pay scale. Suddenly, they cannot revise the scale to bring them down to the lowest stage of the corresponding revised scale, thereby creating anomaly between juniors and seniors. He had also submitted that once pay is fixed consequent upon promotion to higher grade, the question of recovering the amounts will not arise. Further, he submitted that those who were promoted before 1.1.2007 and subsequently to 1.9.2009 were in fact getting higher pay without being disturbed by the impugned orders. Therefore, it was a case of gross discrimination. The learned Senior counsel also referred to relevant Fundamental Rules more particularly FR 22 to contend that juniors cannot draw more pay than the seniors. 20.Per contra, Mr.R.Muthukumarasamy, learned Senior Counsel appearing for CPCL contended that all the petitioners were earlier in the workmen category. They were promoted as officers. Their initial level of entry is Grade A post. In the CPCL, there are Grades from A to G which do not correspond with the scales introduced by the Central Government consequent upon the 2nd Pay Revision for the below board level executives of CPSEs. They had agreed to create an intermediary category giving starting salary of Rs.12000/-. But, the Government of India had refused to recognize such intermediary scale and that the establishments of all CPSEs were directed to bring uniform categorisation. Therefore, in order to give effect to the said order, corresponding grades were identified by the CPCL. But, in fact, in the category of Grade A, the persons who are holding the said Grade were given higher fixation bringing them on par with E3 scale and corresponding revised scale was fixed. Therefore, the petitioners were benefited by such revision and they have no cause to complain. 21.The learned Senior Counsel for the CPCL further stated that it cannot be said that there was wrong fixation. Though there might have been some error in the initial fixation, but subsequently on getting clarification, pay scales have been correctly fixed. In no case, a person who was in particular grade consequent upon revision was made to receive lower than the earlier scale of pay. In fact, on promotion they are getting much higher than what they https://hcservices.ecourts.gov.in/hcservices/ were drawing in the lower scale. It was further stated that since there was no clear cut guidelines, the petitioners were given adhoc increase by the impugned order. Each time, it was indicated that revision was done on provisional basis. The petitioners have accepted the said order and have received higher scale of pay. They cannot now be heard to complain that the revision of scale of pay and also consequent recovery of excess payment was wrong. In fact, salary of petitioners as workmen were in the range of Rs.19747/-