IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.7.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeals No.2252 of 1999 and 2584 of 2003, and C.M.P.No.2485 of 2001 and WAMP.No.3989 of 2003 W.A.No.2252 of 1999: 1.The Chief General Manager, State Bank of India, Local Head Office, 21, Rajaji Salai, Madras-600001. 2.The Branch Manager, State Bank of India, Asaveerankudikadu, Ariyalur Tk., Tiruchirapalli District. 3.The Chairman, Canara Bank, Head Office, Bangalore. ... Appellants Vs. 1.S.Subramani 2.S.Govindan 3.G.Kaliaperumal 4.K.O.Jacob 5.T.Savarimuthu 6.P.Sivaperuman 7.S.M.Samuel 8.U.Ramasamy 9.R.Viswanathan 10.S.Rangachari 11.M.Veeramalai https://hcservices.ecourts.gov.in/hcservices/ 12.K.H.R.Khan 13.M.Jaffer Sathik 14.K.Subramanian 15.K.S.Oommen 16.G.D.Prithivaraj 17.The Secretary to Government of India, Ministry of Finance, Department of Economic Affairs (Banking) Division, New Delhi. 18.The Chairman, Bank of Baroda, Baroda. ... Respondents W.A.No.2584 of 2003: Bank of Baroda, rep.by its Chairman, Baroda ... Appellant Vs. 1.S.Subramaniam 2.S.Govindan 3.G.Kaliaperumal 4.K.C.Jacob 5.T.Savarimuthu 6.P.Sivaperuman 7.S.M.Samuel 8.U.Ramasamy 9.R.Viswanathan 10.S.Rangachari 11.M.Veeramalai 12.K.H.R.Khan 13.M.Jaffer Sathik 14.K.Subramanian 15.K.S.Oommen 16.G.D.Prithivaraj https://hcservices.ecourts.gov.in/hcservices/ 17.The Secretary to Government of India, Ministry of Finance, Department of Economic Affairs (Banking) Division, New Delhi. 18.The Chief General Manager, State Bank of India, Local Head Office, 21,Rajaji Salai, Madras-600001. 19.The Branch Manager, State Bank of India, Asaveerankudikadu, Ariyalur Tk., Tiruchirapalli District. 20.The Chairman, Canara Bank, Head Office, Bangalore. ... Respondents * * * Both the Writ Appeals are filed under Clause 15of the Letters Patent, as against the order of the learned single Judge of this Court, made in W.P.No.16609 of 1990, dated 27.7.1999. Writ Petition filed under Article 226 of the constitution of India praying for the issue a writ of Certiorarified Mandamus, order, direction particularly in the nature of Writ, calling for the records relating to the proceedings bearing F.No.12/7/90-SCT (B), dated 16.5.1990 on the file of the first respondent, including the circular No.47/85, dated 9.10.1985 by the second respondent and also the order passed by the III Respondent in his proceedings No.RM IV.15812-12-213, dated 16.3.1990 and quash the same as nul and void consequentially direct the respondents to refix the pay of the petitioners: (i) Either to compare the last drawn defence pay of the petitioners with the beginners pay as per third settlement; (ii) or to inflate the last drawn defence pay of the petitioners also by 60% notionally and compare with the beginners pay in bank as per IVth settlement since the latter is already inflated by 60% and to pay the petitioners with retrospective arrears to be paid and other benefits thereto and thus render justice. https://hcservices.ecourts.gov.in/hcservices/ * * * For appellants in : Mr.V.Karthick for both the appeals : Mr.T.S.Gopalan & Co. For R.1 to R.6, R.8 to R.11 & : Mr.N.G.R.Prasad for R.14 to R.16 in M/s.Row and Reddy both the appeals : For others in both the appeals : No appearance * * * COMMON JUDGMENT ELIPE DHARMA RAO, J. These two appeals are filed by the Nationalised Banks challenging the order passed by a learned single Judge of this Court in W.P.No.16609 of 1990, dated 27.7.1999. 2. For the sake of convenience, the appellants are referred to as Managements and the party respondents are referred to as workmen. 3. All the workmen in these cases are the ex-servicemen and having served in the National Defence Services, they got re- employment in the appellants/Nationalised Banks between 1.7.1983 and 17.9.1984. It is an admitted case that the pay of the ex- servicemen is protected on their re-employment, as per the guidelines issued by the Government of India. It is seen from the records that the Third Bipartite Settlement entered into between the Managements and the workmen, dated 1.8.1979, came to an end on 30.6.1983 and the Fourth Bipartite Settlement was made on 17.9.1984, but was given retrospective operation from 1.7.1983. All the workmen in both these cases were appointed between 1.7.1983 and 17.9.1984. When the Fourth Bipartite Settlement was implemented, the basic pay of every Award staff, who was on rolls as on 17.9.1984 was refixed as on 1.7.1983 or the date of appointment, whichever was later, irrespective of whatever emoluments they had drawn during the interregnum period between 1.7.1983 and 17.9.1984. According to the Managements, the basic wages, which the workmen have drawn between the dates of their appointment and 17.9.1984 was of no consequence. 4. In these circumstances, the impugned circular dated 9.10.1985, the Managements have stated that the matter as to how https://hcservices.ecourts.gov.in/hcservices/ the salaries of ex-servicemen who have joined the Banks on or after July 1, 1983 i.e. the date from which the wage revision of Award staff in terms of the 4th Bipartite Settlement came into effect retrospectively, but before September 17, 1984 i.e. the date of settlement, has been examined in consultation with the Indian Banks Association and it has been ordered that their pay may be made on the basis of protection of pay drawn in the armed forces or at a stage where the new basic pay plus dearness allowance corresponds to the basic pay plus dearness allowance drawn by them in the armed forces, whichever is higher. It has also been ordered that if, as a result of such refixation, their salary (Pay+DA) is reduced, the recovery of excess payment for the period July 1, 1983 to September 17, 1984 be waived and recoveries for subsequent period will be made, made necessary in 3-4 instalments. 5. This Circular was challenged by the workmen by filing W.P.No.16609 of 1990, praying to issue a Certiorarifed Mandamus, calling for the records relating to the proceedings bearing F.No.12/7/90-SCT(B), dated 16.5.1990 on the file of the Secretary to Government of India,Ministry of Finance Department of Economic Affairs (Banking) Division, New Delhi, including the circular No.47/85, dated 9.10.1985, issued by the Chief General Manager, State Bank of India, Chennai and also the order passed by the Branch Manager, State Bank of India, Asaveerankudikadu, Tiruchirapalli District in his proceedings No.RM IV.15812-12-213, dated 16.3.1990 and quash the same as null and void, consequently directing the Managements to refix the pay of the workmen (i) either to compare the last drawn defence pay of the workmen with the beginners pay as per Third Settlement or (ii) to inflate the last drawn defence pay of the workmen also by 60% notionally and compare with the beginners pay in Bank as per IV Settlement since the latter is already inflated by 60% and to pay the petitioners with retrospective arrears to be paid and other benefits thereto. 6. By the time the workmen in the cases on hand joined the services of the appellants/Banks, the Third Bipartite Settlement was in vogue and all the workmen in the cases on hand were given pay protection. Thereupon, when the Fourth Bipartite settlement came into operation, their pay was revised and re-fixed, ignoring the benefits they have already enjoyed in the Third Bipartite Settlement. By the impugned actions of the appellants, since the pay of the workmen has already reached the basic pay of their respective scales in the fourth bipartite settlement, it was ordered to grant them one increment. It has been contended by the workmen that when the pay of their seniors, who were also the ex- https://hcservices.ecourts.gov.in/hcservices/ servicemen and joined prior to them in the Banks, was protected and were granted more number of increments in the Third Bipartite Settlement, refusing the same benefit for them is illogical and illegal. It has also been contended that when all the employees have got 60% hike by way of their pay revision in the fourth bipartite settlement, it is illegal rather ridiculous on the part of the Managements in reducing the pay of these workmen. 7. The learned single Judge, has accepted the case of the workmen and held that the pay scale of the workmen has to be protected and their pay has to be correspondingly fixed in the Fitment of Fourth Bipartite Settlement. Aggrieved by the same, the Banks have come forward to file these appeals 8. On the part of the Banks, it has been contended that the pay of all ex-servicemen, who were recruited between 1.7.1983 and 17.9.1984, was fixed at a stage in the corresponding category as per the Third Bipartite Settlement and when the terms of the Fourth Bipartite Settlement was announced, the pay of the Ex- servicemen was also protected in such a way that the last drawn pay of the ex-servicemen drawn during their service in the defence services, was taken into consideration and pay was fitted in the corresponding category as admissible in the Fourth Bipartite Settlement; that for instance, the first petitioner in the writ petition viz. S.Subramanin was drawing a pay of Rs.500/= in the defence services and when he was appointed in the Bank, his last drawn pay of Rs.500/= was protected, by fitting him in the scale of Rs.515/=, which was the basic pay as per the Third Bipartite Settlement and when the Fourth Bipartite Settlement was introduced, the pay of Rs.500/=, which was last drawn pay in the defence services was taken into consideration and his pay was fixed at Rs.520/=, thereby protecting his last drawn pay in the defence services. By submitting these particulars, the appellants/Banks would contend that the contention of the workmen that the fitment according to the Fourth Bipartite Settlement corresponding to a pay of Rs.515/= was Rs.820/= and therefore, their pay has to be fixed accordingly, cannot be adhered to. It has also been strongly contended on behalf of the Banks that the employees in the cases on hand, being the ex-servicemen are already receiving pension for their services in the Defence and granting the relief, as has been sought for on their part, would amount to according duel benefits for them, besides being illogical and illegal. 9. It is contended on behalf of the employees that by indicating a particular scale of pay at the time of appointment, a https://hcservices.ecourts.gov.in/hcservices/ right is conferred on them to get a corresponding higher scale of pay as and when there is revision of the scale of pay. The specific case of the appellants/Banks is that the intention of the Government is protection related to pay and not to a scale of pay. 10. On a careful perusal of the entire materials placed on record, we are able to see that the apparent intention of the Government was to ensure that the ex-servicemen at the time of their employment in the public sector banks do not get an amount as pay lesser than what they were drawing while in defence service. It is seen that the scale of pay on the basis of the Third Bipartite Settlement applicable to the clerical cadre, to which most of the workmen were appointed, was Rs.325-20-405-25- 455-30-545-35-580-40-660-45-750-50-800-60-1160 and after retrospective operation of the Fourth Bipartite Settlement, the scale was revised to Rs.520-30-580-35-685-45-820-55-930-60-990-65- 1055-70-1195-85-1280-95-1660. Admittedly, the pay of the workmen in the cases on hand, was taken into consideration and the same was also protected by granting suitable increments to them, while fixing their pay as per the Third Bipartite Settlement. Now, it is contended that their pay fixed as per the Third Bipartite Settlement should be taken into consideration for corresponding fixation of their pay in the IV Bipartite Settlement. 11. In these circumstances, the question that arises for consideration is whether the scale of pay of the workmen is to be protected, as has been contended by them and as has been accepted by the learned single Judge? 12. Many things have been argued on behalf of the workmen by the learned counsel appearing on their behalf. But, it is to be mentioned that same question fell for the consideration of the Honourable Apex Court in STATE BANK OF INDIA AND OTHERS vs. K.P.SUBBAIAH AND OTHERS [(2003) 11 SCC 646], wherein the Honourable Apex Court, while dismissing the appeals of the employees and allowing the appeals of the Bank has held: "In service jurisprudence the expressions "pay" and "pay scale" are conceptually different connotations. Pay is essentially a consideration for the services rendered by an employe and is the remuneration which is payable to him. Remuneration is the recurring payment for services rendered during the tenure of employment. Pay and salary are necessarily not interchangeable concepts. Their meanings vary depending upon the provisions providing for them." https://hcservices.ecourts.gov.in/hcservices/ "Public services comprise different grades and, therefore, different pay scales are provided for different grades. The pay of an employee is in that background fixed with reference to a pay scale. This is necessary to be done because the pay of an employe does not remain static. An employe starts with a particular pay which is commonly known as initial pay and the periodical increases obtained by him are commonly known as increments. When the highest point is reached, the employee concerned becomes entitled to what is known as ceiling pay. It is, therefore, a graded upward revision. Each stage in the scale is commonly referred to as basic pay. The emoluments which an employee gets is not only the basic pay at a particular stage, but also the additional amounts to which he is entitled as allowances e.g. DA etc. Therefore, when a question of pay protection comes, the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced.." "The fixation of pay scales is essentially a function of the executive. They are closely interlined with evaluation of duties and responsibilities attached to the posts and the pay scales are normally linked with conclusions arrived at by expert bodies like the Pay Commission. Ordinarily, a pay structure is evolved keeping in mind several factors, for example (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenue of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, and (x) the employer's capacity to pay etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause unavoidable ripples in other cadres as well. In other words, the degrees of skill, strain or work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of tasks, hazard attendant on work and fatigue involved are some of the relevant factors which go into the process of fixing the pay scale." "One thing is clear from various documents based on record that the intention as reflected in the policy https://hcservices.ecourts.gov.in/hcservices/ of the Government of India was to protect the last pay drawn of the ex-servicemen concerned in the armed forces. For the purpose of fixation of pay of ex- servicemen re-employed in the public sector banks, protection was to be given to total emoluments i.e. pay plus DA (instead of only pay) last drawn before their retirement from the armed forces. Perforce, a scale of pay was to be fixed. It stands to logic that the employer while fixing pay has to fix it at a level of pay which would ensure compliance with the requirement that it is not less than the last pay drawn." "There was no intention to protect any particular scale of pay. That being the position, the demand of a corresponding pay scale has no rationale. The High Court was, therefore, clearly in error in holding that the scale of pay was the determinative factor. The direction that while refixing the pay and DA the total pay fixed when the petitioner entered into the Bank's service has to be protected within the corresponding scale of pay, cannot be maintained and is indefensible." "Strictly speaking, there is no fitment to a particular scale as contended by the employees. The fitment into a particular scale has to be considered in the background of the policy decision to ensure the payment of an amount not less than the last pay drawn. In that sense, it cannot be said that there was any fitment to a particular scale to attract the corresponding scale of pay in terms of the subsequent settlement." (emphasis supplied) 13. This judgment of the Honourable Apex Court is the straight answer to the contentions raised by the employees in these cases also. Since admittedly, there was no loss of emoluments to the workmen, on their joining the appellant Banks and that their pay was well protected and as per the above judgment of the Honourable Apex Court, there was no protection regarding any particular scale of pay, applying the above judgment of the Honourable Apex Court, the claim of the workmen needs to be rejected. 14. Further more, in the latest judgment, in S.C.CHANDRA AND OTHERS vs. STATE OF JHARKHAND AND OTHERS [(2007) 8 SCC 279], the Honourable Apex Court has held: https://hcservices.ecourts.gov.in/hcservices/ "Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect." 15. While coming to the contention of the discrimination pleaded on the part of the employees, citing the example of one Mr.A.Soosai Prakasam (Ex-serviceman), Roll No.33302 of the Narikkudi branch of the Indian Overseas Bank, in whose case his request for refixation of his pay with reference to the guidelines existing at the time of his appointment, since the said Soosai Prakasam has not been made a party to these proceedings, we have no say in this regard. 16. At this juncture, it is apt to quote a judgment of the Honourable Apex Court in M/s.VISHAL PROPERTIES PVT. LTD. vs. STATE OF U.P. & OTHERS [2007 (7) SUPREME 432], the Honourable Apex Court has held: "Article 14 is not meant to perpetuate an illegality; it provides for positive equality and not negative equality. The authorities may have acted in an irregular manner in case of some others. That does not confer any legal right on the appellant to claim a similar benefit." 17. In this judgment, the judgment in STATE OF KERALA vs. K.PRASAD & ANOTHER (JT 2007 (9) SC 140) has been relied on, wherein it has been held: "Dealing with such pleas at some length, this Court in Chandigarh Administration and Another V. Jagjit Singh and Another, has held that if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose. This position in law is well settled by a catena of decisions of this Court (see: Secretary, Jaipur Development Authority, Jaipur V. Daulat Mal Jain and others [(1997) 1 SCC 35] and Ekta Shakti Foundation V. Govt. of NCT of Delhi. It would, https://hcservices.ecourts.gov.in/hcservices/ thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities." For all the above discussions, these appeals filed by the Banks deserve to be allowed and accordingly, both these appeals are allowed, setting aside the order of the learned single Judge. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Rao To The Secretary to Government of India, Ministry of Finance, Department of Economic Affairs (Banking) Division, New Delhi. +1cc to M/s.Row & Reddy, Advocate Sr 37488 +2ccs to M/s.T.S.Gopalan & Co., Advocates Sr 37372, 37273 MG (CO) km/13.8. W.A.Nos.2252/99 & 2584 of 2003 https://hcservices.ecourts.gov.in/hcservices/