IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.04.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.10887 OF 2008 .. Dr.N.Jagannathan Medical Officer Tirupattur Co.op. Sugar Mills Ltd., Kethandapatti 635 818. .. Petitioner vs. 1.The State of Tamil Nadu rep. By its Secretary to Government Industries Department Fort St.George, Chennai 600 009. 2.The Commissioner of Sugar No.690 Anna Salai Chennai 600 035. 3.The Special Officer Thirupattur co.operative Sugar Mills Kethandapatti Vellore District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.K.S.V.Prasad For respondents : Mr.A.Edwin Prabhakar Addl.Govt.Pleader for R.1 & 2 Ms.G.Thilakavathy for R.3 ORDER The writ petition is directed against the impugned Government Order in G.O.Ms.No.117, Industries (MIC-II) Department dated 20.9.2006 insofar as it relates to giving revision of scale of pay to the petitioner with prospective effect from 20.9.2006 and for https://hcservices.ecourts.gov.in/hcservices/ direction against the first respondent Government to fix the scale of pay as per the G.O. with retrospective effect from 1.1.1999 and also to pay arrears. 2. The petitioner was appointed as a Medical Officer at Ambur Co-operative Sugar Mills Limited on 17.1.1977 and he was transferred to Tirupattur Co-operative Sugar Mills Limited on 4.11.1987, where the petitioner is now working. The Co-operative Sugar Mills are public sector units and therefore, the Medical Officers working there are different from the common cadre in the sense that they do not have the promotional avenue with the result, the Medical Officers who joined in the sugar mills have to serve till their retirement. a) On the representation of persons like, the petitioner, the competent authority viz., the second respondent, the Commissioner of Sugar in his proceedings dated 4.5.1992, sanctioned various grades of scales, after obtaining the assent from the first respondent Government. Accordingly, the selection grade and special grade scales of pay are granted on completion of 10 and 20 years of service respectively and the same is intended to be granted as a monetary benefit to the Medical Officers who are found stagnated in the same post and the said monetary benefit cannot be said to be equivalent to the promotional avenue available to other common cadre. b) The scale of pay has accordingly been given effect by the second respondent in the proceedings dated 4.5.1992 and the said monetary benefit has been given from the said date itself. The petitioner who has put in 20 years of service as on 17.1.1997 as Medical Officer was placed only under the Selection Grade scale of pay and after 17.1.1997 he has been drawing the Special Grade scale of pay. It is stated that out of 300 common cadre Officers, only the petitioner and another Medical Officer Dr.V.Sagar were placed in the special grade scale of pay by the proceedings of the second respondent. c) While the petitioner is working in Tirupattur Co-operative Sugar Mills, the said Dr.Daya Sagar was working in the Dharmapuri Co-operative Sugar Mills, retired from service and thereafter, the petitioner is the only Medical Officer serving in the sugar mills drawing the special grade scale of pay. The second respondent set up a Pay Revision Committee on the representations of the erstwhile common cadre Officers, since 10 years have passed after the last Pay Revision Committee submitted its report dated 8.5.2000. d) Since the recommendation of the earlier Committee was not on par with the Government Officers, the erstwhile common cadre officers made a further representation to the second respondent pointing out the anomaly and the second respondent once again recommended to the first respondent Government to revise the pay scale of the common cadre officers on par with the Government servants with effect from 1.1.1996 with monetary benefits from https://hcservices.ecourts.gov.in/hcservices/ 1.1.1999 and the said revision of pay was done as per the V Pay Commission report. e) It is accordingly stated that after receiving the recommendation of the second respondent, the Government in G.O.Ms.No.302 Industries Department (MIC-II) dated 25.8.2000, revised the scale of pay of all common cadre officers of the Co- operative and public sector sugar mills on par with the Government officers. In the said order, the Government has specifically stated that in respect of the Medical Officers also the revision should be made on par with the Government Officers. In the said G.O. it is also recommended that the said post can be abolished after retirement and resignation of the existing officers of whom the petitioner is the last person. f) It is stated that the second respondent, following the G.O.Ms.No.302 Industries Department (MIC-II) dated 25.8.2000, issued instructions on 19.10.2000 regarding the revision of pay of all common cadre officers but omitted to mention about the special grade basic pay structure. Since the special grade pay was not mentioned in the said instructions given by the second respondent, the Special Officers of Tirupattur and Dharmapuri Sugar Mills could not revise the existing pay scales of the Medical Officers in those Sugar Mills on par with the revised scales as shown in the V Pay Commission report. g) The existing pay scale being Rs.3700-125-4700-150-5000, the revised pay scale as per V Pay Commission is Rs.12000-375-16500. This was communicated by the Special Officers to the second respondent seeking instructions. The second respondent instead of correcting the errors, issued a direction on 1.10.2001, stating that the decision to grant special grade pay to the Medical Officers in public sector sugar mills and co-operative sugar mills has been taken based on the benefits that are available to other Medical Officers and therefore directed to fix the pay of the Medical Officers from the pre-revised scale of Rs.3700-125-4700-150-5000 to the revised scale of pay of Rs.10000-325-15200, instead of sanctioning Rs.12000-375-16500. h) Thereafter, the special grade has been abolished without approval of the first respondent Government and without any opportunity being given to the Medical Officers concerned. Therefore, the scale of pay which was revised in the proper manner has been deliberately omitted causing inconvenience to the petitioner. The petitioner and Dr.Sagar sent representations explaining that the V Pay Commission report formed the basis for the revision of pay structure relating to them and the special grade pay structure has been omitted by the second respondent in his instructions by mistake, that the present revision of pay scale of Rs.10000-325-15200 cannot be termed to be on par with the Government Officers and it does not amount to revision of existing scale of pay and that it is against the spirit of G.O.Ms.No.302 Industries Department (MIC-II) dated 25.8.2000, which is applicable to all https://hcservices.ecourts.gov.in/hcservices/ common cadre officers including the Medical Officers. (i) Since there was no reply, the petitioner filed W.P.No.20061 of 2001 and the said Dr.Sagar filed W.P.No.20062 of 2001, pointing out the anomaly in the abolition of special grade and challenging the above said order of the second respondent dated 1.10.2001 and praying for revision of pay scale of Rs.12000-375-16500. (j) The above said writ petitions were disposed of by this Court on 10.1.2006, recording the fact that the petitioner and the said Dr.Sagar are the only two persons throughout the State affected and directing them to approach the first respondent by filing proper revision and further directing the Government to dispose of the revision. In compliance with the said order of this Court, the petitioner sent a revision to the first respondent on 30.1.2006, followed by a statement given by him in person on 5.4.2006 to the Industrial Secretary. Acknowledging the anomaly, the Government passed orders in G.O.Ms.No.117, Industries (MIC-II) Department, dated 20.9.2006, revising the scale of pay to Rs.12000-375-16500 against the then existing special grade scale of pay of Rs.3700-125- 4700-150-5000 subject to the condition that the revision of pay should be given only with prospective effect. (k) The said order is challenged in so far as it relates to the failure to give effect from 1.1.1996 with monetary effect from 1.1.1999 as given to common cadre officers on the ground that dispensing with the benefit of revised scale of pay by the second respondent in his proceedings dated 1.10.2001 itself is illegal, that there is no reasonableness in giving prospective effect to the G.O.No.117 Industries Department (MIC-II) dated 20.9.2006, which itself is intended to rectify the anomaly and damages caused to the petitioner’s pay scale and that by such improper appreciation of the entire issue, there is huge monetary loss to the petitioner being the only person in service in the cadre of Medical Officer in Co- operative and Public Sector Sugar Mills. 3. In the counter affidavit filed by the third respondent- Special Officer, while it is stated that in common cadre system, no special grade or selection grade scale of pay has been allowed to all officers except the Medical Officers. The petitioner was appointed on 17.1.1977 as Medical Officer in sugar mills and on representation, a decision was taken by the second respondent, who has administrative control over the functioning of the Sugar Mills permitting the petitioner to have his private practice subject to the condition that he would attend to the routine medical responsibilities of the mill without in any way being prejudicial to the interest of the workers. a) In the year 1984, the Government wanted to create a common cadre service for officers functioning in various sugar mills, especially under the Co-operative Societies Act. As per G.O.Ms.No.866 Industries Department dated 25.7.1984, the Medical https://hcservices.ecourts.gov.in/hcservices/ Officers functioning under the mills were grouped under the common cadre and therefore, the benefits enumerated to common cadre officers were made available to the medical officers functioning in sugar mills. b) Subsequently, the Government took a policy decision in G.O.Ms.No.834 Industries Department dated 08.12.1987 and decided to abolish the common cadre system by which, the common cadre officers were required to exercise their option and the individual incumbent would be treated as mill employee. It was, thereafter, the Government passed G.O.Ms.No.302 Industries (MIC-2) Department dated 25.8.2000, based on the recommendations of the Committee to examine the anomalies recommending a specified pattern of fixation as made in the case of Government employees. c) The issue raised in this writ petition is relating to the fixation of pay granted to the Medical Officers in sugar mills upon abolition of common cadre. The Pay Revision Committee headed by the second respondent, was constituted to consider the revision of pay in the line of V Pay Commission report, based on the representations from the Sugar Mills. The Government permitted the second respondent to grant pay revision to those employees, who were the erstwhile common cadre officers as per the Appendix to the G.O.Ms.No.302 Industries (MIC-2) Department dated 25.08.2000 with effect from 1.1.1996, but the monetary benefit should be given from 1.1.1999. d) In terms of the proceedings of the second respondent, the following scales were permitted: (i) Ordinary grade scale of pay .. Rs.2500 -75-2800-100-4200 (ii) Selection grade scale of pay ..Rs.3000-100-3500-125-4500 (iii) Special grade scale of pay .. Rs.3700-125-4700-150-5000 Taking note of the workload of the Medical Officers who were treated as common cadre officers and they are not similar to that of Government Medical Officers, while implementing G.O.Ms.No.302 Industries Department (MIC-II) dated 25.8.2000, the second respondent decided to dispense with the provision of the Special Grade in respect of Medical Officers in the Co-operative and Public Sector sugar mills. e) That was the decision taken after considering the fact that their working hours is restricted to morning and evening sessions with permission to carry on private practice and in those circumstances, intermediary scale of pay of Rs.10,325-15200 was decided to be granted to the translated scale for the pre-revised scale of pay of Rs.3700-125-4700-150-5000. It is also stated that it was in those circumstances, this Court on earlier occasion when the writ petition was filed, observed that the petitioner cannot claim as a matter of right, however, permitting to make representation to the Government. f) It was, based on the direction of this Court, the revised https://hcservices.ecourts.gov.in/hcservices/ scale of pay was given at the rate of Rs.12000/-, however, taking note of the financial constraint and the nature of work executed by the petitioner and another person, the benefit was directed to be given only from the date of G.O. and according to the third respondent, the petitioner cannot have any grievance over the G.O. which is a policy decision. 4. Mr.K.S.V.Prasad, learned counsel appearing for the petitioner would vehemently submit that when the Government has accepted the grievance of the petitioner and another similarly situated Medical Officer and decided to implement the V Pay Commission report, as seen in G.O.No.302, Industries Department (MIC-II) dated 25.8.2000, it was the proceedings of the second respondent dated 1.10.2001 by which the special Grade was deliberately left out and when that was challenged in the High Court, the petitioner was directed to give further representation to the Government especially when the Government accepted to implement the pay revision on par with other Government employees as per V Pay Commission Report and when such benefit has already been given to other similarly placed common cadre employees in the Co-operative Sugar Mills with effect from 1.1.1996 with monetary benefit from 1.1.1999, denying the same to the petitioner is arbitrary and violative of Article 14 of the Constitution of India. a) It is also his submission that by such arbitrary conduct, the petitioner who is the only person available in the State of Tamil Nadu as Medical Officer in the Co-operative Sugar Mills is detrimentally affected in spite of his rendering service for a long period. His submission is that even if it is a policy, the same is perverted. In this regard he would rely upon the following judgments: (i)Kailash Chand Sharma vs. State of Rajasthan [AIR 2002 SC 2877], (ii) Braithwaite Officers' Association vs. Union of India [2003 Lab. I.C. 213 Calcutta], (iii)K.T.Veerappa vs. State of Karnataka [(2006)9 SCC 406], (iv)Union of India vs. S.R.Dhingra [(2008) 2 SCC 229], (v) Union of India vs. Arun Jyoti Kundu (2007 (7) SCC 472), (vi)State of West Bengal vs. Ratan Behari Dey [(1993) 4 SCC 62], (vii)Purshottam Lal vs. Union of India (AIR 1973 SC 1088), (viii) Punjab State Co.op. Agricultural Development Bank Pensioner's Association vs. State of Punjab [2006 LIC 1241] and (ix)P.K.Malik v. State of U.P. [2006 Lab. I.C. 170]. 5. Per contra, it is the contention of the learned Government Pleader as well as Mrs.G.Thilagavathy, learned counsel appearing for the 3rd respondent that there is no illegality on the part of the Government especially when the Government has taken note of the nature of service rendered by the petitioner as Medical Officer who https://hcservices.ecourts.gov.in/hcservices/ has been permitted not only to practice privately but also to do service as Medical Officer in the Sugar Mills only for limited hours and therefore, by restricting the benefit of revision of pay scale from the date of G.O. the same cannot be stated to be either arbitrary or illegal. 6. I have heard the learned counsel for the petitioner and the respondents and referred to various documents and given my anxious thoughts to the issue involved in this case. 7. It is a fact that the Medical Officers appointed in Sugar Mills have no avenue of promotion and that has prompted the department to provide higher pay scale as evident from the proceedings of the second respondent, the Commissioner of Sugar in Roc.No.12371/91/G1 dated 4.5.1992, by which the second respondent decided to grant selection grade after completion of 10 years of service and special grade after 20 years of service and accordingly, the pay structure has been fixed as follows: (i) Ordinary scale :Rs.2500-75-2800-100-4200 (ii) Selection Grade scale (after completion of 10 years):Rs.3000-100-3500-125-4500 (iii) Special Grade Scale (after completion of 20 years):Rs.3700-125-4700-150-5000 8. It is not in dispute that the common cadre system which was introduced in the second respondent department by G.O.Ms.No.866, Industries Department dated 25.7.1984 was dispensed with by G.O.Ms.No.834, Industries Department dated 8.12.1987, agreeing to fix the pay scale on par with the Government servants. Accordingly, the Pay Revision Committee was constituted and when the enquiry before the Committee was pending, the second respondent based on the representations of the employees of sugar mills, recommended to revise the pay on par with the Government employees with effect from 1.1.1996 however, conferring the monetary benefit with effect from 1.1.1999, as it is seen in G.O.Ms.No.302, Industries (MIC-II) Department dated 25.8.2000. 9. The Government in the said G.O. permitted the said proposal and directed the second respondent to revise the scale of pay on par with the Government employees from 1.1.1996 but restricted the monetary benefits with effect from 1.1.1999. It is also stated in the said G.O. that by virtue of the revision, the arrears liable to be paid are to be paid in three installments at 40%, 30% and 30% respectively. In the said G.O., it is also directed that since Medical Officers are working in the Sugar Mills, their salary can also be revised and after retirement of the existing Medical Officers, the posts can be abolished. It is also not in dispute that the petitioner is the last person in the cadre of Medical https://hcservices.ecourts.gov.in/hcservices/ Officers in Co-operative Sugar Mills. 10. In the Annexure to the said G.O., while fixing the pay scale equivalent to the existing scale of pay of the Government employees, the first and second scales which are relevant for the purpose of this case are as follows: 1) Rs.4500-150-5700 --- revised as Rs.15000-400-18600. 2) Rs.3000-100-3500-125-4500 --- revised as Rs.10000-325-15200. In between these two, the pay scale of Rs.3700-125-4700-150-5000 does not find a place for the reason that such scale of pay is not available to the Government servants. While, the Commissioner of Sugar in the proceedings dated 4.5.1992, allowed the said scale of RS.3700-125-4700-150-5000 as special grade scale of pay, it was, after G.O.Ms.No.302, Industries (MCI-II) dated 25.8.2000 came to be issued by the Government with direction to the second respondent as stated above, the second respondent issued a circular on 19.10.2000, fixing the pay scale as per G.O. in which the scale of pay of Rs.3700-125-4700-150-5000 was not shown. 11. It was, finding out the anomaly that there was no corresponding scale of pay for the Government servants against the scale of pay Rs.3700-125-4700-150-5000, the second respondent in his proceedings in RC.No.9646/SL-2/2001 dated 1.10.2001, taking note of the fact that the Medical Officers in the Sugar Mills do not have the workload similar to that of Medical Officers in the Government and in the common cadre system, there was no special grade or selection grade, it was decided to dispense with the provision of special grade to Medical Officers in the Co-operative and Public Sector Sugar Mills in order to rectify the anomaly and fixed the revised pay scale as Rs.10000-325-15200 for the pre-revised scale of pay of Rs.3700-125-4700-150-5000. The operative portion of the said letter is as follows: " 5. The Chief Executives of Cooperative and Public Sector Sugar Mills are therefore instructed to fix the scale of pay for the Medical Officers who are drawing their pay in the pre-revised scale of pay of Rs.3700-125- 4700-150-5000 in the revised scale of pay of Rs.10,000- 325-15200." 12. It has been the case of the petitioner and Dr.V.Dayasagar that the said pay scale of Rs.3700-125-4700-150-5000 was dispensed with by the second respondent wantonly or by oversight saying that it should be corresponding to the revised scale of pay of Rs.12000- 375-16500. However, the proceedings of the second respondent dated 1.10.2001 shows that the said scale of pay was not inadvertently omitted, but was not shown because such corresponding scale of pay https://hcservices.ecourts.gov.in/hcservices/ was not available for the Government servants. In the writ petition filed by the petitioner and the said Dr.Sagar in W.P.Nos.20061 and 20062 of 2001 challenging the said communication of the second respondent dated 1.10.2001 fixing the revised pay scale of Rs.10000- 325-15200 for the pre-revised scale of pay of Rs.3700-125-4700-150- 5000, a common order dated 10.1.2006 was passed by this Court, dismissing the said petitions with the following observations: " 10. The judgements referred by the learned counsel for the petitioners to show that before deciding the scale of pay, adequate opportunity should have been given. On the other hand, it is seen from the impugned order itself that the scale of pay Rs.3700-125-4700-150-5000 was given as a Special grade which was not payable to all the employees in the sugar mills and the claim of the petitioners itself is based on the proceedings of the second respondent dated 04.05.1992 and that is sought to be fixed by the impugned order in respect of the Special grade pay. However, by protecting the scale of pay of the petitioners in the pre-revised scale of pay 3700-125-4700- 150-5000, it cannot be said that the petitioners are entitled for the revised pay scale based on the fifth pay commission report. On the other hand, the pay revision in respect of the employees of the sugar mills, especially the petitioners, has not been earlier based on the recommendations of the pay commission or the Fitment Table. 11. Therefore, in my view, it is not open to the petitioners now as a matter of right to claim that the Fitment Table as per the pay commission report as valid, when the pay scale of the petitioners in 3700-125-4700- 150-5000 has been revised as 10000-325-15200 based on the Government order, which is not assailed anywhere, the writ petitions cannot be sustained and therefore, the writ petitions are liable to be dismissed." In the said order it was further held that, what was given on 4.5.1992 by the second respondent was only a solatium since the Medical Officers have no chance of promotion and there was stagnation, however permitted the petitioners therein to make a representation to the Government and with a further direction to the Government to pass appropriate orders on the same. 13. It is, based on the said observation, the petitioner made a representation to the Government on 30.1.2006, requesting the Government to fix the revised scale of pay of Rs.10000-325-15000 at Rs.12000-375-16500, and it appears that along with the said representation the petitioner enclosed a copy of the order of this Court made in W.P.Nos.20061 and 20062 of 2001. The statement of the https://hcservices.ecourts.gov.in/hcservices/ petitioner was also recorded on 5.4.2006 at the time of personal hearing and thereafter, the Government issued the impugned G.O.Ms.No.117, Industries (MIC-2) Department dated 20.9.2006. 14. A reference to the operative portion of the impugned G.O. shows that the Government accepted to refix the scale of pay at Rs.12000-375-16500 as a special case and not to treat the petitioner on par with other Government servants for the reason that admittedly such pre-revised scale of pay of Rs.3700-125-4700-150-5000 is not available for the Government servants. It was in those circumstances, the direction for refixation as stated above was considered only as a special case for the petitioner and therefore, the direction by the Government to give effect to the refixation from the date of Government order cannot be said to be either arbitrary or illegal. 15. In the absence of a scale to the Government servants equal to the pay scale of Rs.3700-125-4700-150-5000, certainly the petitioner has no right to claim the revised pay scale at the rate of Rs.12000-375-16500 with effect from 1.1.1996 and monetary effect from 1.1.1999. By following the pay scales of the Government servants, the pay benefits were given to the common cadre employees of the second respondent, based on the existing equivalent pay scales as per V Pay Commission report. Inasmuch as the said pay scale of Rs.3700-125-4700-150-5000 is not available in the Government pay structure, but the same was given by the second respondent in his earlier proceedings dated 4.5.1992 only as one time measure taking note of the fact that there was no opportunity for Medical Officers in sugar mills for further promotion and there was stagnation, it does not mean that the said pay scale should be treated as one which is