IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.01.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.5402 of 2004 K.Kanthavel ... Petitioner Vs. Tamil Nadu Electricity Board rep. by its Chief Engineer (Personnel), VIII Floor, NPKRR Maligai, 800, Anna Salai, Chennai-2. ... Respondent PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue appropriate Writs, Orders or directions and more particularly issue a writ in the nature of Certiorarified Mandamus and after calling for the records of the Respondent relating to the orders dated 11.2.2002 bearing Memo No.1443546/1975/G56/G561/97-30 and order dated 25.04.2002 bearing no.144355/1975/G56/G561/97-35 and quash the same and consequently direct the Respondent to give the post of Assistant in the revised pay scale of Rs.4,000 – 100 – 6,000/- to which the Petitioner is fully qualified as per the Tamil Nadu Electricity Board Service Regulation by giving the Petitioner pay protection in the revised scale of pay for the post of Assistant. For Petitioner : Mr.Balan Haridoss For Respondents : Mr.M.Vaidyanathan for TNEB O R D E R Petitioner has filed this Writ Petition praying for Certiorarified Mandamus to quash the orders in Memo No.1443546/1975/G56/G561/97-30 dated 11.2.2002 and Memo No.144355/1975/G56/G561/97-35 dated 25.04.2002 respectively passed by the Respondent and for consequential direction to direct the Respondent to give the post of Assistant in the revised pay scale of Rs.4000-100-6000/-. 2. Brief facts are that Petitioner was originally working in Tamil Nadu Magnesium and Marine Chemicals Limited (for short TMML), a Government of Tamil Nadu undertaking. Due to technology problem and uneconomical operating conditions, it was shut down on 31.03.1993. By G.O.Ms.No.59, Industries Department dated 20.02.1997, Government of Tamil Nadu issued orders directing the https://hcservices.ecourts.gov.in/hcservices/ State Public Sector Undertakings to absorb the employees of TMML. Thereafter, TMML Employees Union filed W.P.No.10517/1998. By the order dated 19.04.1999, the High Court has disposed of the Writ Petition interalia directing the Government to pass appropriate orders to absorb the employees in any one of the State owned Corporations within a period of 12 months from the date of the order. 3. As per the direction of the Government of Tamil Nadu, Respondent-Tamil Nadu Electricity Board [TNEB] offered the post to Petitioner in the TNEB and the same was communicated to him by letter dated 16.03.1999. Petitioner does not appear to have accepted the offer made by the Respondent-Board. Thereafter, Petitioner filed Contempt Petition in C.P.No.227/2000 alleging that the Chairman, TNEB had committed an act of contempt in disobeying the orders of the Court. In the said Contempt Petition, by the order dated 10.11.2000, the learned single Judge directed the TNEB to create a post and appoint the Petitioner with pay protection. Petitioner again filed another Contempt Petition in C.P.No.744/2001 against the Chairman, TNEB. By the Proceedings dated 31.12.2001 order of appointment was issued to the Petitioner appointing him to the post of 'Assessor' in the scale of pay of Rs.3370-100-5770 and was allotted to Tirunelveli Electricity Distribution Circle. By the Memo dated 04.01.2002, Petitioner was appointed and posted in the office of Junior Engineer Grade-I, Distribution, Palayamkottai. Petitioner joined as Assessor on 19.01.2002. 4. It is the case of Petitioner that he has put in 13½ years service as Assistant in TMML and while appointing the Petitioner in the Respondent-Board, the Respondent ought to have protected his pay scale as drawn by him in the Assistant scale of pay and the same was not done. Case of Petitioner is that in TMML, his last drawn basic pay was Rs.1720/- and in the pre-revised time scale of pay 1320-30-1500-40-2040. At the time of leaving TMML, he was drawn a sum of Rs.5372/-. According to Petitioner corresponding revised basic pay of Assistant is Rs.5600/-, but the Respondent has erroneously fixed him in the minimum basic pay of Rs.3370/- as if he is a new recruitee without taking into account the last drawn pre-revised basic pay of Rs.1720/-. Petitioner is said to have made representation on 27.03.2002 and 12.04.2002 respectively requesting the Respondent to give him pay protection as per the orders of the High Court in C.P.No.227/2000. According to the Petitioner, in the pre-revised scale of Rs.1320-30-1560-40-2040, he ought to have been fixed him in the basic pay of Rs.5600/- in the Assessor time scale of Rs.3370-100-5770 whereas the Respondent had fixed only the minimum basic pay of Rs.3370/-. After issuing legal notice, Petitioner has filed this Writ Petition. 5. Respondent has filed the counter stating that as against the order passed in C.P.No.227/2000, TNEB has filed appeal in LPA No.49/2002 and in the LPA, the Division Bench has observed that direction given to the TNEB in the Contempt proceedings cannot be https://hcservices.ecourts.gov.in/hcservices/ sustained. According to Respondent-Board, appointment of Petitioner to the post of Assessor was pursuant to the erroneous order passed in the Contempt Petition and therefore, Petitioner's claim to appoint him in the post of Assistant cannot be countenanced. According to Respondent the direction given for pay protection has already been complied with. While working as Assistant in TMML, Petitioner has got the gross salary of Rs.4409/- p.m. whereas in the Electricity Board in the post of Assessor, he is getting the gross salary of Rs.5147/- p.m. and in the post of Assessor he is drawing more what he was drawing in TMML. 6. The prayer in the Writ Petition is two fold:- One is to give him the post of Assistant in the revised scale of pay of Rs.4000-100-6000. C.P.No.227/2000 was filed against the Chairman, TNEB as if the Chairman, TNEB had committed the act of contempt in disobeying the orders of the Court in W.P.No.10517/1998. As contended by the learned counsel for TNEB, in W.P.No.10517/1998, the Chairman, TNEB was not a party. However, the learned single Judge directed the Electricity Board to create a post and appoint the Petitioner with pay protection. As against the said order, Respondent-Board filed an appeal in LPA.No.49/2002. According to Respondent, even while they were taking steps to file an appeal, Petitioner has filed another Contempt Petition in C.P.No.744/2001. According to Respondent under threat of contempt, Respondent was obliged to issue an order of appointment to the Petitioner in the Memo dated 31.12.2001 appointing him to the post of Assessor. It is pertinent to note that in the appeal in LPA.No.49/2002, observing that direction to create the post in the contempt proceedings cannot be sustained, the Division Bench held as under:- " .... The learned judge in the order dated 10.11.2000 directed the Electricity Board to create a post to appoint the Petitioner (Respondent herein) in a suitable post within thirty days from the date of receipt of a copy of this order, giving pay protection to him. From the above said facts, it is clear that such a direction given to the Electricity Board cannot be sustained, that too in the contempt proceedings though the Electricity Board was not the Respondent in the Writ Proceedings." Further since the Petitioner has already been given the job and he was working, the Division Bench declined to interfere with the order of appointment. As rightly contended by the learned counsel for Respondent-Electricity Board, appointment of Petitioner in the post of Assessor itself is only based on the order passed in the Contempt Petition. Petitioner having accepted the post of Assessor, cannot have any further claim to appoint him in the post of Assistant and such a claim of Petitioner cannot be countenanced. 7. In so far as pay protection, Petitioner was appointed as Assessor in the pay scale of Rs.3370-100-5770. While the Petitioner was working in TMML, his scale of pay was Rs.1320-2040. As per G.O.Ms.No.162 Finance (Pay Cell) Department dated 13.04.1998, scales of pay and allowances were revised from https://hcservices.ecourts.gov.in/hcservices/ 01.01.1996. Pre-scale of pay of Rs.1320-30-1500-40-2040 was revised to Rs.4300-100-6000. While appointing the Petitioner in the post of Assessor, this Court is of the view that, Petitioner should have been given pay protection in the revised basic pay of Rs.4300/-. Ofcourse, the said basic pay can be fitted in the pay scale of Assessor i.e. Rs.3370-100-5770. 8. In the result, the Writ Petition is partly allowed. In so far as claim of Petitioner to post him in the post of Assistant, the Writ Petition is dismissed. In so far as pay protection, the Respondent is directed to fix the basic pay of Rs.4300-100-6000 in the pay scale of Assessor at Rs.3370-100-5770 from the date of his appointment. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. bbr To The Chief Engineer(Personnel), Tamil Nadu Electricity Board, VIII Floor, NPKRR Maligai, 800, Anna Salai, Chennai-2. 1 cc to Mr. Balan Haridas, Advocate, Sr. 5826 1 cc to Mr.Vaidyanathan, Advocate, Sr. 5430 W.P.No.5402/2004 SJ (CO) kk 11/2 https://hcservices.ecourts.gov.in/hcservices/