These writ petitions are filed for direction against the respondent Corporation to fix the basic pay and allowance of the petitioners in the time scale of pay of Rs.8000-275-13500, as admissible to the post of Assistant Manager from the date when the petitioners were designated as Assistant Manager In-charge and also to revise their pension based on such re-fixation.
2. The petitioners were appointed as Clerks in the Tamil Nadu State Transport Department on 19.01.1963, 22.10.1965, 11.04.1966, 19.12.1962, 17.6.1963 and 03.04.1963 respectively. When the Transport Corporations were formed in the year 1972 under the Companies Act,1956, they were absorbed in Pallavan Transport Corporation. At present, it is functioning as Metropolitan Transport Corporation Chennai Limited.
2(a). From 01.05.1975 onwards, Longevity Pay Scheme was introduced. It is stated that the petitioners rendered services continuously for more than 38 years and they were promoted to the post of Section Officers during the years 1991, 2001, 1992, 1994, 1995 and 1993 respectively and the post of Section Officer carries the time scale of pay, Rs.4895-180-6155185-9485 with effect from 01.09.1998.
2(b). It is the case of the petitioners that the respondent has not filled up the post of Assistant Manager, which became vacant due to superannuation, voluntary retirement, deputation, etc. The petitioners were eligible to be promoted as Assistant Managers and they were in fact posted as Assistant Manager In-charge (Pre-audit), carrying on higher responsibility, which includes passing of bills involving huge amounts and in that capacity, the petitioners have been working nearly for five years. However, the petitioners have not been given the scale of pay and allowances admissible to the post of Assistant Manager and are drawing only the salary of Section Officer.
2(c). It is the case of the petitioners that the post of Assistant Manager carries the time scale of pay Rs.8000-275-13500 and it also carries allowances as applicable to the State Government employees. It is stated that the petitioners retired on superannuation on 31.5.2001, 30.04.2004, 31.5.2005, 31.10.2002, 30.09.2003 and 30.06.2001 respectively and they were losing a sum of Rs.2,500/- each per month till the date of retirement.
2(d). It is their case that they were performing and discharging the duties of the Assistant Manager (Pre-audit) including the passing wage bills of all workers with higher responsibility. The petitioners made representations to the Management on several occasions claiming the pay on the basis of 'equal pay for equal work' and in spite of the same no order has been passed and therefore, the petitioners have filed the above writ petitions for the direction as stated above.
3. It is the case of the respondent in the counter affidavit that at the time of retirement the petitioners were working as Section Officers, which is a post of supervisory group and they were posted as Assistant Manager In-charge temporarily to look after the functions of pre-audit section on their willingness and on condition that they will not be entitled for any increase in the emoluments and they would continue to draw the salary of Section Officer.
3(a). It is stated that the petitioners have carried on the work of supervisory group and not in the cadre of Assistant Manager. For the supervisory group, the pay is fixed under Longevity Pay Scheme covered under the settlement under
Section 12(3) of the Industrial Disputes Act,1947 and it is only a stop-gap arrangement. It is only after retirement of the petitioners and after receiving all the pensionary and other benefits, the present writ petitions have been filed by the petitioners and it is the case of the respondent that after retirement there is no employer and employee relationship and therefore, the question of granting allowance in the cadre of Assistant Manager does not arise.
3(b). It is stated that the post of Assistant Manager is a managerial post and it can be filled up subject to the availability of vacancy and as per the Service Rules it is filled up either by promotion, transfer or by direct recruitment and the selection is made by way of promotion on seniority and merit basis by a properly constituted Committee and the selection has to be approved by the Board of the Transport Corporation and it is only after the approval, such promotion is given effect to.
3(c). The scale of pay of Assistant Manager is on par with the Assistant Manager in Tamil Nadu State Government and it is not covered under the Longevity Pay Scheme or the settlement under
Section 12(3) of the Industrial Disputes Act,1947. It is only in respect of the supervisory group, such Longevity Pay Scheme and 12(3) settlement are entertained. Therefore, the claim for payment of salary of Assistant Manager to the petitioners cannot be considered. The pay revision applicable to Assistant Manager is not applied to the petitioners since they were not appointed in the Managerial cadre. Since the petitioners have not protested at the time of getting retirement benefits, the present claim made by them after a period of seven years cannot be entertained, at this stage.
4. It is the case of the learned counsel for the petitioners that even though the petitioners have retired between 2001 and 2005, they have been constantly making representations about their demand and it is the respondent Management which has not considered their demand till time. He would rely upon various judgments to substantiate his contention that the petitioners are entitled for equal pay for equal work, viz.,
(i)N.Rajasekaran Nair vs. Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, and another (2006 (2) MLJ 420);
(ii)Secretary cum Chief Engineer vs. Hari Om Sharma (1998 (5) SCC 587),
(iii)Selvaraj vs. Lt.Governor of Island, Port Blair (1998 (4) SCC 29); and
(iv)Jaswant Singh Vs. Punjab Poultry Field Staff Association (2002 (1) SCC 261).
5. On the other hand, it is the contention of Mr.Jayeesh B.Dolia, learned counsel appearing for the respondent Corporation that while it is true that the petitioners were put in charge of the post of Assistant Manager, it was only on specific condition that they will be paid salary in the lower post i.e., Section Officer which was accepted by the petitioners. It is also stated that inasmuch as the post of Assistant Manager is to be filled up by promotion/transfer on the basis of merit and ability and such procedure has not been followed in the case of petitioners, the petitioners are not entitled to claim salary in the post of Assistant Manager. It is stated that the writ petitions are liable to be dismissed for laches, since the petitioners having received the pensionary benefits, have waited for more than seven years for filing these writ petitions.
6. On a reference to the entire factual aspects as mentioned above, it is clear that even though the petitioners who are retired have been making representations repeatedly from 2001 onwards, but they have not approached the forum for the purpose of ventilating their grievance. It is also not in dispute that they have all received the pensionary benefits without any objection. In such circumstances, the question to be decided is, as to whether the petitioners can be directed to be paid the time scale of pay in the post of Assistant Manager from the date when they were asked to perform the work of Assistant Manager In-charge in Pre-audit Section and their pension can be directed to be refixed based on the same.
7. In the service certificates issued in respect of the petitioners by the respondent, in the Column prescribed for the post last held, it is stated as 'Assistant Manager In-charge/Section Officer'. The salary pattern is shown as Rs.4895-180-6155-185-9485, which is admittedly the salary for the post of Section Officer. It is the case of the respondent that while the post of Section Officer is a supervisory post, the post of Assistant Manager is coming under managerial category and therefore, they are different cadres. However, it is the case of the petitioners that they were eligible to be posted as Assistant Managers in the available vacancies on the date when they were put In-charge and they were in fact performing the functions of Assistant Manager in the managerial capacity, which fact is not denied by the respondent in the counter affidavit.
8. In Jaswant Singh vs. Punjab Poultry Field Staff Association and others (2002 (1) SCC 261), the Supreme Court has held that even in cases where persons were not qualified for the next post, but when they were discharging the duties of the next post, they are entitled for the relief, however, restricting it for three years from the date of the claim. In that case, the appellant in the Supreme Court had performed the functions of the post of Chick Sexer, to which he was not qualified. The Supreme Court, while holding that the appellant would not be entitled for promotion to the post of Chick Sexer, but taking note of the fact that he was performing the duties, held that he was entitled for the pay and allowances, in the following words:
" 11. The High Court's decision in Gobind Singh case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of Chick Sexer since Gobind Singh had been discharging the duties of that post. Therefore, while the appellant's promotion to the post of Chick Sexer cannot be upheld, given the fact that the appellant had discharged the duties of a Chick Sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.
12. We accordingly allow the appeal in part. While upholding the order of the High Court, setting aside the order of the appellant's promotion, we direct the respondent Authorities to pay the appellant for the period he rendered service as a Chick Sexer at the scales of pay together with all allowances to which Chick Sexers were entitled at the relevant time. However, this relief is limited to the period commencing from three years prior to the filing of the suit by the appellant upto the time he continued to discharge duties as a Chick Sexer. All dues in terms of this order must be paid to the appellant within a period of six months from the date of this judgment after adjustment of payment already made to the appellant by the respondent authorities. The appeal is disposed of accordingly without any order as to costs."
9. When a similar contention viz., promotion was effected as a stop-gap arrangement on an undertaking that lower salary would be paid, was raised, the Supreme Court, by relying upon
Section 23 of the Indian Contract Act, in Secretary cum Chief Engineer, Chandigarh vs. Hari Om Sharma (AIR 1998 SC 2909) held that there is an entitlement to claim higher salary and denying the same would be opposed to public policy. The relevant portion is as under:
" 8. Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. All agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of
Section 23 of the Contract Act."
10. N.Paul Vasanthakumar,J. by referring to the above said judgments of the Supreme Court and also the judgment of Division Bench of this Court reported in Union of India vs. Central Administrative Tribunal (2004 (1) ATJ 24) in N.Rajasekaran Nair vs. Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George and another (2006 (2) MLJ 420), considering the similar circumstances, held as follows:
" 9. In the decision reported in Selvaraj v. Lt.Governor of Island, Port Blair, (1998 (4) SCC 291) in paras 3 and 4, the Hon'ble Supreme Court held that the pay of higher post if admissible when an employee is looking after duties of that post, the employee is entitled to get the higher post pay even though the said post is not to be treated as promotion.
10. In the other judgment cited by the learned counsel for the petitioner which is reported in Jaswant Singh v. Punjab Poultry Field Staff Association, (2002 (1) SCC 261), the Supreme Court held that even if a person promoted is not qualified to hold the post, but discharged the duties in the promotion post, he is entitled to get the pay and allowances admissible to the promotion post.
11. The above referred judgments of the Supreme Court are followed by a Division Bench of this Court in the decision reported in Union of India vs. Central Administrative Tribunal (2004 (1) ATJ 24).
12. The other objection that the promotion was given only as stop-gap arrangement is also answered by the Hon'ble Supreme Court in paras 6 and 7 of the decision reported in Secretary-cum-Chief Engineer vs. Hari Om Sharma (1998 (5) SCC 87). Therefore, the said objection is also unsustainable.
13. The above referred settled position of law reveals that the respondents are bound to pay salary to the petitioner for the period for which he worked in the higher post. Consequently, the difference in pay shall be calculated and paid to the petitioner within a period of eight weeks from the date of receipt of copy of this order."
11. On the facts and circumstances of the present cases, it is not even the case of the respondent that the petitioners were not qualified to be posted as Assistant Managers even if it is stated to be a stop-gap arrangement. It is also not in dispute that the petitioners were asked to perform the functions of Assistant Managers in the available vacancies, even though they were put In-charge of the posts of Assistant Managers and paid the salary of Section Officers.
12. Considering the above said facts and circumstances of the present case and taking note of the judicial precedents which are categorical, the petitioners are entitled for the relief as claimed in these writ petitions. Accordingly, the writ petitions stand allowed with direction to the respondent to fix the pay and allowance of the petitioners in the post of Assistant Manager from the date when they were directed to act as Assistant Manager In-charge. However, taking note of the fact that the petitioners have chosen to approach this Court after seven years of their retirement, I am of the view that they are not entitled for the arrears of salary from the date when they were made to work as Assistant Manager In-charge till the date of their retirement, but the petitioners should be construed as retired Assistant Managers and their pensionary benefits should be fixed from the date of their retirement by treating them as Assistant Managers retired and arrears of pensionary benefits are directed to be paid to each of the petitioners and such amount shall be paid by the respondent to the petitioners within a period of eight weeks from the date of receipt of copy of this order. The respondent is directed to continue to pay the pensionary benefits as per re-fixation. No costs. Connected miscellaneous petitions are closed.
Index:Yes/No Internet:Yes/No Kh 04.12.2009 P.JYOTHIMANI,J.
To The Management of Metropolitan Transport Corporation Ltd., Anna Salai, Chennai 600 002.
P.D.Common Order in W.P.Nos.654 to 658 & 26211/2008 Dated:04.12.2009