IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17-4-2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR Writ Petition No.4421 of 2006 W.P.M.P.No.4736 of 2006 1. N.S.Balasubramanian 2. Koshy Kuruvilla 3. A.R.Subramanian 4. B.Balasubramania Iyer 5. V.Marimuthu 6. E.Selvanayagam 7. T.R.Jaya Lakshmi 8. Siva Shanmugham 9. C.R.Narayana Pillai 10. V.Prakasham 11. C.P.Sukumar 12. K.Chandra 13. D.Uma Devi 14. M.Papaiah Naidu 15. S.Meenakshi Sundaram 16. N.Sundaram 17. P.R.Anantha Raman 18. V.Chellian 19. P.M.Rudramani ... Petitioners Vs. 1. Food Corporation of India, rep.by the Chairman and Managing Director, Headquarters, 16-20, Barakhama Lane, New Delhi – 110 001. 2. The Executive Director (South) Food Corporation of India Zonal Office, No.3, Haddows Road, Chennai – 600 006. 3. The General Manager, Food Corporation of India, Regional Officer, Greams Road, Chennai – 600 006. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ This writ petition has been filed under Article 226 of Constitution of India, for issuance of a writ of mandamus directing the respondents to extend the benefits arising from the judgment of the Honourable Kerala High Court in O.P.No.13651 of 2001 dated 20.10.2003 and confirmed by the Division Bench of the Honourable Kerala High Court in W.A.No.293 of 2004 as well as by the Honourable Supreme Court in S.L.P.No.20319 of 2005 to the petitioners herein, who are identically situated by stepping up of the petitioners' pay on par with that of their junior Rajan C.Abraham, with effect from 2.1.1993 with all the consequential benefits including arrears of pay etc. For Petitioner : Mr.Vijay Narayan, Sr.Counsel for Mr.R.Parthiban For 1st Respondent : Mr.R.Muthukumaraswamy Addl. Advocate General for Mr.P.D.Audikesavalu O R D E R Prayer in the writ petition is to issue a direction to the respondents to extend the benefits arising from the judgment of the Kerala High Court made in O.P.No.13651 of 2001 dated 20.10.2003 as confirmed by the Division bench of the Kerala High Court in W.A.No.293 of 2004 as well as by the Supreme Court in S.L.P.No.20319 of 2005, to the petitioners, who are identically situated, by stepping up petitioner's pay on par with that of the petitioner's junior Rajan C.Abraham with effect from 2.1.1993 with all consequential benefits including arrears of pay, etc. 2. The brief facts necessary for disposal of the writ petition are as follows. (a) Petitioners entered into the services of the Food Corporation of India as Assistant Grade-III and subsequently they were promoted to Grade-II and then to Grade-I in the year 1977-78. Petitioners' junior Rajan C.Abraham was promoted to Assistant Grade-I in the year 1985. Subsequent to the wage revision that took place with effect from 1.2.1992, the said junior was paid higher pay than the petitioners with effect from 2.1.1993. Petitioners with other seniors, who were working in the Kerala region, made representation to the Regional/Zonal/Head Office for rectification of the pay anomaly by stepping up their pay on par with that of Rajan C.Abraham. Respondent/Corporation, stepped up the pay by applying circular No.13 dated 9.7.1997 and removed the pay https://hcservices.ecourts.gov.in/hcservices/ anomaly and enhanced their pay on par with that of their junior Rajan C.Abraham. The said order was erroneously cancelled by the respondent and ordered recovery of the enhanced pay. (b) The seniors of Kerala Region filed O.P.No.13651 of 2001(A) before the Kerala High court at Ernakulam and challenged the cancellation of stepping up of pay and the said O.P. was allowed by the learned single Judge by order dated 20.10.2003. The respondent/ Corporation preferred W.A.No.293 of 2004. A Division Bench of Kerala High Court dismissed the writ appeal on 2.6.2005 and held that petitioners therein, who are seniors, are entitled for stepping up of their pay on par with that of their juniors and quashed the revision of salary. The respondent/Corporation filed S.L.P.No.20319 of 2005 before the Supreme Court and the same was also dismissed on 18.5.2005 and thereafter the respondent/Corporation implemented the said order on 20.10.2005 and consequently the original order of stepping up of pay issued in favour of the seniors on par with their junior Rajan C.Abraham was restored and consequential arrears was paid. (c) The case of the petitioners is that they are also identically placed and their pay was also stepped up on par with their junior viz., Rajan C.Abraham. The respondent/Corporation has chosen to cancel the order stepping up petitioners pay and ordered recovery of excess pay allegedly drawn by the petitioners. Petitioners 1 to 16 opted for voluntary retirement in the year 2004 and their alleged excess pay was recovered in one lumpsum from their retirement benefits, ranging from Rs.75,000/- to Rs.80,000/-. (d) Petitioners further stated that consequent to the dismissal of the SLP filed by the respondents, against the Kerala High Court's order, petitioners submitted representation to the respondent/Corporation seeking extension of benefits flowing from the judgment of the Kerala High Court. Petitioners also submit that some of the petitioners are seniors to those persons who preferred O.P. before the Kerala High Court and the same can be ascertained from the seniority list issued on 31.12.1992. The Zonal Office in Chennai addressed letters on 8.11.2005, 22.11.2005 and 7.12.2005 to the headquarters at New Delhi and stated that the petitioners are also identically situated as that of the petitioners before the Kerala High Court and the Headquarters' advise was sought as to whether the benefit of Kerala High Court judgment could be extended to the petitioners. Seniority in the grade of Assistants https://hcservices.ecourts.gov.in/hcservices/ Grade-I was maintained in Zone-wise and the southern zone include four states, namely, Tamil Nadu, Kerala, Karnataka and Andhra Pradesh, which has a Zonal office. The representation given by the petitioners having not been considered and the recovery having been made, which is contrary to the decision of the Kerala High Court referred above, petitioners have filed the present writ petition. 3. The learned Senior Counsel appearing for the petitioners submitted that the claim of the petitioners is fully sustainable and the letter of the Zonal office, Chennai dated 8.11.2005 addressed to the Deputy General manager, Food Corporation of India, New Delhi, after getting a legal opinion from the legal division recommended for restoration of petitioners stepping up of pay and the said recommendation is extracted hereunder, "The Legal Division has opined that when similarly placed persons are denied for want of court order, the same benefit which were extended to the petitioners, it would lead to number of litigations and ultimately the order passed in the W.A.No.293/2004 and in SLP.20319/2005 is likely to follow and would lead to infructuous/avoidable expenditure on legal cases. Legal Division has, therefore, opined that it would be appropriate to extend similar benefit to all similarly placed persons to that of the petitioners. Zonal Finance also concurred with the above views. As the Hqrs. has been monitoring the progress of the case from time to time and issuing directions and guidelines at the various stages right from the beginning in the case filed by Shri C.Madhavan Pillai and others, W.P.No.10651/2000 filed by Shri B.Gurumurthy and 8 others, W.P.No.26440/2001 filed by Jacob Zachariah, W.P.No.21084/2003 filed by Shri L.N.Murthy and 4 others, it is felt that the Head Office may consider the case of non-petitioners in south zone for extension of similar benefits on par with the petitioners in O.P.No.13651/2001 and also to the petitioners in various W.Ps., W.P.No.10651/2000 filed by Shri https://hcservices.ecourts.gov.in/hcservices/ B.Gurumurthy and others, W.P.26440/2001 filed by Jacob Zachariah and W.P.21084/2003 filed by Shri L.L.N.Murthy and 4 others in A.P.High Court and communicate decision with regard to extension of the benefits in terms of Supreme Court in SLP.No.20319/2005 or otherwise at an early date." The learned counsel therefore submitted that the legal division of the Southern Zone properly advised the respondent/Corporation to extend the benefits to the petitioners also and the inaction on the part of the respondent is discriminatory and in violation of Article 14 of the Constitution of India. Learned Senior counsel cited the decisions reported in 1999 SCC (L&S) 788 (Govind Ram Purohit and another v. Jagjiwan Chandra and others); (2003) 12 SCC 192 (State of Karnataka and others v. N.Parameshwarappa and others); (2006) 1 MLJ 695 (S.A.Kanthimathi v. Director of School Education, Madras & Others); 1995 (1) SCC (Suppl) 18 (Sahib Ram v. State of Haryana) and AIR 1997 SC 3588 (K.C.Sharma v. Union of India) and submitted that the petitioners are entitled to the same benefits as they are also seniors to Rajan C.Abraham. 4. The learned Additional Advocate General submitted that Circular No.13 dated 9.7.1997 was wrongly applied and the said mistake having been found, the stepping up of pay was cancelled and recovery was made. The learned Counsel cited the decision reported in AIR 2003 SC 2189 (A.K.Bindal v. Union of India) and contended that petitioners 1 to 16 having accepted for voluntary retirement, have foregone all their rights and it is not open to them to contend that they had to exercise their option under any compulsion. The learned Additional Advocate General also relied on the decisions reported in 1995 Supp (4) SCC 706 (Harpal Kaur Chahal v. Director, Punjab Instructions, Punjab and another); AIR 1996 SC 2890 (Union of India v. J.V.Subhaiah); and AIR 2002 SC 2427 (State of Karnataka v. G.Halappa). 5. I have considered the submissions of the learned Senior counsel appearing for the petitioners as well as the learned Additional Advocate General appearing for the respondents/Corporation. https://hcservices.ecourts.gov.in/hcservices/ 6. The point raised for consideration in this writ petition is whether the petitioners herein are similarly placed to that of the petitioners before the Kerala High Court, who were granted relief of stepping up of their salaries on par with their junior Rajan C.Abraham with effect from 2.1.1993. 7. In the affidavit filed by the petitioners it is categorically stated that the petitioners are also similarly placed and their salary was also stepped up from 2.1.1993 and subsequently the order of recovery was made by the respondents by cancelling the order of stepping up of their salary. In the counter affidavit filed by the respondents, nowhere it is stated that the claim of the petitioners are not similar to the one of the petitioners before the Kerala High Court. The reason stated in the counter affidavit is that the petitioners herein and the petitioners before the Kerala High Court are not entitled to stepping up of their pay as per circular No.13 dated 9.7.1997. 8. The learned Additional Advocate General appearing for the respondents stated that the Kerala High Court never declared any law and also not decided any principle. A perusal of the order of the learned single Judge of the Kerala High Court reveals that the sanction of higher salary to the petitioners therein on par with Rajan C.Abraham under Ex.P-3 is held to be in order and cancellation of the same issued under Ex.P-7 is held not justifiable. The Division Bench of the Kerala High Court in W.A.No.293 of 2004 considered the validity of Ex.P-3 and Ex.P-7 and held as follows, "... the fact remains that Rajan C.Abraham was promoted much later than the petitioners, but he was given a higher scale of pay as Assistant Grade- I, Petitioners were seniors to Rajan C.Abraham and merely because Rajan C.Abraham was involved in a vigilance case, he cannot be given a higher scale than his seniors. The stepping up of pay given to the petitioners as per Ex.P-3 is correct. We fully agree with the reasoning of the learned single Judge." https://hcservices.ecourts.gov.in/hcservices/ The S.L.P.Civil No.(S)20319 of 2005 filed before the Honourable Supreme court by the respondents was also dismissed on 18.10.2005. The respondents herein, pursuant to the dismissal of the SLP by the Honourable Supreme Court, implemented the order of the Kerala High Court by proceedings dated 20.10.2005 and the said order is extracted hereunder, FOOD CORPORATION OF INDIA REGIONAL OFFICE, THIRUVANANTHAPURAM-4 No.WRC/1/18/97-PF Vol.IX Dated:20-10- 2005 PROCEEDINGS Sub: Judgment dated 20-10-2003 of Hon'ble High Court of Kerala in O.P.No.13651/2001 and 18- 10-05 in SLP No.20319 of Hon'ble Supreme Court of India – Fixation of Pay -Reg. Ref: Proceedings No.WRC/1/18/97-PF- Vol.II, dt.10-3-2001 of SRM, FCI, Tvm. In compliance with judgment dt.20.10.2003 of Hon'ble High Court of Kerala in O.P.No.13651/2001 stepping up of pay sanctioned on par with Shri Rajan C.Abraham, then AG.I(A/cs) w.e.f.2.1.93, which was subsequently, cancelled vide proceedings 1st cited, is restored and pay of 24 petitioners is refixed as detailed in the Annexure enclosed. They are entitled for payment, as per refixed pay w.e.f.2.1.93, after adjusting all payments already made to them. Sd/-.M.K.Padmanabahan Regional Manager, For Sr.Regional Manager." 9. Some of the petitioners herein submitted a representation on 31.10.2005 and requested to refund the amount recovered pursuant to the cancellation order, which was marked as Ex.P-7 before the High Court of Kerala in https://hcservices.ecourts.gov.in/hcservices/ O.P.No.13651 of 2001 and prayed for restoring their pay. The Law Department of the respondents gave an opinion that when similarly placed persons are denied the benefit for want of court order, it will lead to multiplicity of proceedings and the order passed in W.A.No.293 of 2004 by the Division Bench of the Kerala High Court is likely to be followed and that would lead to infructuous/avoidable expenses for legal cases. The relevant portion of the report of the legal division is extracted hereunder, "....... Legal Division has, therefore, opined that it would be appropriate to extend similar benefit to all similarly placed persons to that of the petitioners. Zonal Finance also concurred with above views. As the Hqrs. has been monitoring the progress of the case from time to time and issuing directions and guidelines at the various stages right from the beginning in the case filed by Shri C.Madhavan Pillai and others, W.P.No.10651/2000 filed by Shri B.Gurumurthy and 8 others W.P.No.26440/2001 filed by Jacob Zachariah, W.P.No.21084/2003 filed by Shri L.L.N.Murthy and 4 others, it is felt that the Head Office may consider the case of non-petitioners in south zone for extension of similar benefits on par with the petitioners in O.P.No.13651/2001 and also to the petitioners in various W.Ps. W.P.No.10651/2000 filed by Shri B.Gurumurthy and others 26440/2001 filed by Jacob Zachariah and 21084/2003 filed by Shri L.L.N.Murthy and 4 others in A.P.High Court and communicate decision with regard to extension of the benefits in terms of Supreme Court in SLP No.20319/2005 or otherwise at an early date." The Finance Department of the Respondents/Corporation also concurred with the view expressed by the Law Department and the same is made clear in the letter dated 22.11.2005. The above materials reveal the undisputed fact in this case that the petitioners' claim is similar to the one decided by the Kerala High Court and in the light of the above documents available on record, it has to be https://hcservices.ecourts.gov.in/hcservices/ ascertained as to whether the petitioners are entitled to get the relief asked for in the writ petition. 10. The learned Additional Advocate General appearing for the respondents argued that the petitioners 1 to 16, having submitted voluntary retirement application, they are not entitled to maintain this writ petition at this stage. In support of the said submission, the learned counsel cited the judgment of the Supreme Court reported in AIR 2003 SC 2189 (A.K.Bindal v. Union of India). In the said judgment, the Honourable Supreme Court held that the employee leaving the services of the Company or Industrial Establishment and foregoing all his rights in a package deal of give and take, and that there is no question of his again agitating for any kind of his past rights with his erstwhile employer, including making any claim with regard to enhancement of pay scale for an earlier period. It is further held that if the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totally frustrated. 11. In reply to the said proposition, learned Senior Counsel for the petitioners argued that the petitioners 1 to 16 are not claiming any new right and their claim is only to refund the recovered amount, which was rightly sanctioned and paid by the respondents themselves. Therefore the petitioners' claim cannot be denied on the said proposition of law laid down by the Supreme Court as the issue before the Supreme Court was a new claim. The learned Senior Counsel further argued that the petitioners before this Court as well as the petitioners before the Kerala High Court are similarly placed and their pay was stepped up on par with their junior Rajan C.Abraham and they have been paid the benefit with effect from 2.1.1993. The learned counsel further added that once the petitioners are identically placed like the petitioners before the Kerala High Court, they are entitled to be treated equally and there cannot be any discrimination, otherwise it will be in violation of Articles 14 and 16 of the Constitution of India. Learned Senior Counsel further argued that the petitioners 1 to 16 even though went on voluntary retirement, they can still maintain this writ petition since their fundamental rights guaranteed under Article 14 and 16 are violated, because it is well settled in law that there is no estoppel against or waiver of fundamental rights. https://hcservices.ecourts.gov.in/hcservices/ 12.(a) The principle that there is no estoppel against or waiver of fundamental right is well settled in the decision reported in AIR 1986 SC 180 (Olga Tellis v. Bombay Municipal Corporation). In para 29 of the Judgment, the Constitution Bench of the Honourable Supreme Court held as follows, "29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In Basheshwar Nath v. Commr. of Income-tax, Delhi, (1959) Suppl (1) SCR 528 : (AIR 1959 SC 149), a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J., and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H.Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy." Therefore, the Supreme Court rejected the objection raised by the State with regard to the estoppel and waiver pleaded against the respondents. (b) In AIR 1959 SC 149 (Basheshwar Nath v. Commr. of Income-tax, Delhi) also the Honourable Supreme Court held that there cannot be any waiver of fundamental rights. The said decision is followed in the later judgment cited above. (c) In yet another judgment reported in (2000) 3 SCC 588 (Nar Singh Pal v. Union of India and others) the Honourable Supreme Court held that mere acceptance of retrenchment compensation paid to the employee does not mean that he had surrendered all his constitutional rights in favour of the respondents. It is also held that the fundamental rights cannot be bartered away and compromised https://hcservices.ecourts.gov.in/hcservices/ nor there can be any estoppel against exercise of fundamental right available under the Constitution. (d) The above referred Judgments reported in AIR 1959 SC 149 and AIR 1986 SC 180 were followed by this Court in the decision reported in (1999) 3 MLJ 347 (Pappa v. Government of Tamil Nadu) and the learned single Judge repelled the contention advanced by the State Government that the petitioners having entered into an agreement and received a consolidated pay are not entitled to challenge the validity of the Government Order. 13. Here in this case, the claim of the petitioners are that they are entitled to be treated like similarly placed persons, who are the petitioners before the Kerala High Court and who are paid the recovered amount. In effect, the contention of the petitioners is that they shall be treated equally and if any discrimination is made on the ground that petitioners 1 to 16 have received Voluntary Retirement Scheme benefits and therefore they are not entitled to get the recovered amount, the same will be violative of Article 14 of the Constitution of India. 14. Article 14 of the Constitution of India clearly prohibits discrimination and if any discrimination without any intelligible differentia, certainly violation will be hit by Article 14 of the Constitution of India, which is a guaranteed fundamental right available to any person. The said right being the fundamental to treat equally among equals, cannot be negatived on the plea of waiver or estoppel as rightly held by the Honourable Supreme Court and this Court. 15. In the light of the above submissions and judgments, there is no substance in the arguments of the learned Additional Advocate General appearing for the respondents that petitioners 1 to 16 are not entitled to maintain the writ petition after accepting the Voluntary Retirement Scheme. 16.(a) The learned Senior counsel for the petitioner cited the judgment of the Supreme Court reported in AIR 1997 SC 3588 (K.C.Sharma v. Union of India), wherein in para 6 it is held as under, "6. Having regard to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the https://hcservices.ecourts.gov.in/hcservices/ Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the delay in filing of O.A.No.774 of 1994 is condoned and the said application is allowed. The appellant would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated December 16, 1993 in O.A.Nos.395-403 of 1993 and connected matters. No order as to costs." (b) In another decision cited by the learned Senior Counsel for the petitioner reported in (2003) 12 SCC 192 (State of Karnataka and others v. N.Parameshwarappa and others) in paragraphs 8 and 9 the Supreme Court held as under, "8. ...we do not find any reasonable justification to confine the relief to only such of the teachers who approached the court and having regard to the fact that relief related to the revision of scales of pay, every one of that class of teachers who approached would be entitled to the benefit, notwithstanding that they have not approached the Court. We are in equal agreement with the Division Bench in denying the payment of interest at compounded rates which, in our view, cannot be justified at all on the facts and circumstances of the case wherein a serious and genuine doubt existed about the applicability of the government order dated 30.3.1990, as raised in the proceedings. 9. For all the reasons stated above, the appeals filed both by the State as well as by the private respondent teachers fail and shall stand dismissed. Our declaration to extend the benefits of the judgments to others who have not approached the Court, but similarly placed is to do complete and substantial justice. No costs." (c) In yet another decision reported in 1999 SCC (L&S) 788 (Govind Ram Purohit and another v. Jagjiwan Chandra and others), in para 3 the Honourable Supreme Court https://hcservices.ecourts.gov.in/hcservices/ held thus, "3. It was lastly contended by the learned counsel for the appellants that whereas the petition had been filed by only Respondent 1, the High Court while finally concluding the matter has given a direction to promote all those who were senior to the appellants even though they were not parties to the petition. Once the High Court had placed a particular interpretation on the Rules, the benefit of that interpretation had to go to all those who qualified under the seniority-cum-