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Judgment
P. Jyothimani, J.—The claim of the writ petitioner in this petition is to bring him under regular time scale of pay with effect from 9.3.2001
viz., the date on which he completed his three years of service on consolidated pay, instead of 23.06.2006 as given in the impugned order.
The petitioner who had passed Plus Two was appointed as Sweeper on consolidated pay of Rs. 900/- per month by the third respondent Town
Panchayat on 5.3.1998, in which post he worked from 9.3.1998 and completed his three years of service on 8.3.2001. He is entitled to the
timescale of pay with effect from 9.3.2001 as per G.O.Ms.199 Municipal Administration and Water Supply Department, dated 12.8.1997.
2(a). It is stated that the first respondent by letter dated 19.9.2000, directed all the Assistant Director of Town Panchayats, including the second
respondent, to send proposals in respect of employees on consolidated pay to bring them under the regular time-scale of pay under the above
Government Order, based on which the second respondent instructed the Executive Officers working under his control including the third
respondent to send proposals. It is stated that the third respondent sent proposal by way of resolution by the Panchayat to the second respondent,
which was forwarded to the first respondent, requesting the first respondent to bring the petitioner under timescale of pay from 9.3.2001.
2(b). In the meantime, the implementation of the said Government Order was kept in abeyance from 29.7.2002 and the said ban was lifted on
23.6.2006 by way of G.O.Ms. No. 60, Municipal Administration and Water Supply Department, dated 23.6.2006. After the lifting of the ban, the
petitioner is entitled to time scale of pay with effect from 9.3.2001. However, the first respondent under the impugned order dated 26.7.2006,
directed the third respondent to bring the petitioner under time scale of pay under G.O.Ms. No. 60, Municipal Administration and Water Supply
Department, dated 23.6.2006 with effect from the date of the said Government Order, that is, from 23.6.2006 and consequently, the third
respondent by the impugned proceedings dated 3.8.2006, brought the petitioner under the time scale of pay on 23.6.2006 instead of giving the
benefit from 9.3.2001.
2(c). Against that, many representations were made by the petitioner to the first respondent on 11.9.2006, 14.6.2007 and 4.2.2008. It is stated
that under similar circumstances, the first respondent on 24.7.2001, brought the similarly placed sweepers on consolidated pay belonging to
Sembakkam Town Panchayat in Vellore Region and the Mallur Town Panchayat in Salem Region into the regular time scale of pay with effect
from the date when they completed three years of service.
2(d). It is also stated that in an identical situation, the Tamil Nadu Administrative Tribunal in O.A. No. 771 and 772 of 2004 by order dated
23.02.2004, directed the first respondent to regularize the services of sweepers on consolidated pay in Gandhi Nagar and Kazhichanoor Town
Panchayats from the date of completion of three years of service. When the petitioner approached the first respondent to confer the same benefit
to him, the same was not considered. Hence, the petitioner has filed the present writ petition challenging the impugned order of the first respondent
dated 26.7.2006 and the consequential order of the third respondent dated 3.8.2006.
The said orders are challenged on the ground that they are opposed to G.O.Ms. No. 199 Municipal Administration and Water Supply
Department, dated 12.8.1997 and G.O.Ms. No. 84 Municipal Administration and Water Supply Department, dated 21.5.1998; that G.O.Ms.
No. 60 Rural Development Department, dated 23.06.2006 was lifting the ban in respect of recruitment and promotion and it does not mean that
only from that day onwards, the petitioner is entitled to the benefit, as his right under the previous Government Order has not been taken away;
and that when similarly situated persons have been conferred with such benefit, the denial of the same to the petitioner is violative of Article 14 of
the Constitution of India.
The first respondent in the counter affidavit has stated that the Director of Town Panchayat was delegated with the powers to bring the workers
under consolidated pay into regular establishment by G.O.Ms. No. 195, Municipal Administration and Water Supply Department, dated
17.08.1999, but, consequently, by letter dated 29.7.2002, the Government kept in abeyance the move of bringing 2923 workers into the regular
time scale of pay. It is stated that by G.O.Ms. No. 60 Rural Development Department dated 23.6.2006, the Government lifted the ban and
thereafter, the petitioner was brought into time scale of pay from the date of lifting of the said ban and the petitioner was put in the time scale of pay
of Rs. 2550-55-2660-60-3200 and the retrospective effect could not be given since it is a policy decision taken in respect of 2923 workers. It is
stated that against the judgment dated 19.12.2008 in W.A. No. 1454 of 2007 passed in similar circumstances, a SLP has been filed before the
Supreme Court and the same is pending regarding the time scale of pay with retrospective effect to a person viz., Mr. Sunderdass of Eraniel Town
Panchayat in Kanyakumari District.
The third respondent in the counter affidavit, while admitting that the petitioner was appointed in 1998, it is stated that on 17.9.2001, the third
respondent sent a proposal for bringing the petitioner and other Sweepers into time scale of pay after completion of three years of service. The
same was returned by the Assistant Director of Town Panchayats stating that the proposal was temporarily stopped due to paucity of funds and it
was by G.O.Ms. No. 60 Rural Development Department dated 23.6.2006, the ban was lifted and the time scale of pay was granted to the
petitioner from 23.6.2006 onwards.
As per G.O.Ms. No. 199, Municipal Administration and Water Supply Department dated 12.8.1997 in respect of employees on consolidated
pay in Town Panchayats including Sweepers, their fresh appointment is for one year which can be renewed every year and after completion of
three years of service, based on performance, they can be placed in the regular time scale of pay. By a subsequent G.O.Ms. No. 84, Municipal
Administration and Water Supply Department dated 21.05.1998, by referring to the above said Government Order, while considering the
proposal, the objection for fixing consolidated pay of Rs. 900/- per month, certain guidelines were issued for appointing new employees on
consolidated pay as per G.O.Ms. No. 199, Municipal Administration and Water Supply Department dated 12.8.1997. Accordingly, as on
31.12.1996, those who have worked for more than 10 years on daily wages in the Town Panchayats were directed to be given Rs. 1800/- p.m.
as consolidated pay for a period of one year and thereafter, based on the performance, they may be recommended for regular pay.
Likewise, as on 31.12.1996, those who have completed 5 to 10 years of service on daily wages, were fixed with a consolidated pay of Rs.
1500/- p.m. subject to the above condition. Likewise, as on 31.12.1996, persons who have served less than 5 years on daily wages were fixed
with consolidated pay of Rs. 1200/- p.m. to be recommended for regularisation after 1= years of service. Persons who were appointed after
1.1.1997 in the Town Panchayats are directed to be paid consolidated pay of Rs. 900/- per month for a period of three years by an increase of
10% in the pay every subsequent year for a period of three years and after three years, considering their performance they can be considered for
time scale of payment.
It is not in dispute that these two Government Orders are in existence and in fact, based on the said Government Orders, recommendations
have been made by the third respondent after completion of three years of service of the petitioner, who was appointed on 5.3.1998 on
consolidated pay of Rs. 900/- p.m. As it is admitted in the counter affidavit of the third respondent, the third respondent has submitted a proposal
in Na. Ka. No. 167/01 dated 17.9.2001 through the second respondent for fixation of time scale of pay for sweepers who have completed three
years of service which includes the petitioner. However, under the impugned letter dated 3.8.2006, the third respondent has brought the petitioner
under time scale of pay from 23.6.2006 based on the letter of the first respondent dated 26.7.2006, wherein the first respondent has ordered that
as per G.O.Ms. No. 60 Rural Development Department dated 23.6.2006, the petitioner and other similarly placed persons should be paid time
scale of pay from 23.6.2006.
The only reason assigned as it is seen in the counter affidavit by the respondents is that while it is true that proposal was sent after completion of
service of the petitioner in 1998 itself to bring him under the time scale of pay, the ban was lifted by G.O.Ms. No. 60 Rural Development
Department dated 23.6.2006 and therefore, it was thereafter, pending proposals were given implementation with effect from the date of the said
Government Order. A reference to G.O.Ms. No. 60 Rural Development Department dated 23.6.2006 shows that in respect of 1645 sweepers
appointed on consolidated pay, the proposals for bringing them under time scale of pay were kept in abeyance due to financial crunch and that
order came to be lifted in the said Government Order, in which it has been clearly stated that as per G.O.Ms. No. 84 Municipal Administration
and Water Supply Department dated 21.5.1998 and other Government Order which are mentioned therein, the sweepers working in various
special panchayats numbering to 1541, apart from 1182 Water-suppliers and 200 Electricians totalling 2923 employees were directed to be
brought under time scale of pay.
In the said Government Order, which is relied upon by the respondents in the impugned letters, there is absolutely no reference about
conferring of the benefit of bringing those consolidated employees under time scale of pay only from the date of said Government Order. What is
stated is that the earlier Government Orders, including G.O.Ms. No. 84 Municipal Administration and Water Supply Department dated 21.5.1998
have to be implemented. The said G.O.Ms. No. 84 Municipal Administration and Water Supply Department dated 21.5.1998 makes it very clear
as illustrated above that in respect of sweepers appointed after 1.4.1997 on consolidated pay of Rs. 900/- p.m. after completion of three years of
service, based on their performance, they should be considered for bringing them under the time scale of pay. While that is so, it is not open to the
respondents under the two impugned communications which are administrative instructions to interpret the said G.O.Ms. No. 60 Rural
Development Department dated 23.6.2006 to conclude that the time scale of pay has to be conferred even on those persons who have earlier
completed three years of service, only from the date of lifting the ban.
It is the specific case of the petitioner in the affidavit that the first respondent in similar circumstances brought sweepers belonging to the
Sembakkam- Town Panchayat in Vellore Regional and the Mallur Town Panchayat in Salem Region under the time scale of pay by order dated
24.7.2001 and that is not disputed. However, it is the case of the respondents that in respect of those candidates orders have been passed before
the imposition of ban on recruitment in the year 2002 and as far as the petitioner is concerned, even though proposal was received in 2001, the
same was kept in abeyance because of the ban and therefore, after the ban was lifted in 2006, the petitioner''s case was considered on the basis of
later Government Order. This is totally an unacceptable stand, which cannot be countenanced under any circumstance. Law is well settled that
when similarly situated persons have been granted benefits, there is no reason to deny the same to other set of persons like, the petitioner, and such
denial would be violative of Article 14 of the Constitution of India.
In Man Singh v. State of Haryana and Ors. II (2008) CLT 195, the Supreme Court has reiterated the principle of equality enshrined under
Article 14 of the Constitution of India and fair play as follows:
We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether
legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have
made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of state action. It would extend to
an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him.
Equal is to be treated equally even in the matter of executive of administrative action. As a matter of fact, the doctrine of equality is now turned as a
synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is
to be just on the test of ''fair play'' and reasonableness. We have, therefore, examined the case of the appellant in the light of the established
doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal
as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in
fact, HC Vijay Pal was the real culprit who besides departmental proceedings, was an accused in the excise case filed against him by the Excise
Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority of his acquittal by the criminal
court in the Excise case and after exoneration, he has been promoted the higher post, here as the appeal and the revision filed by the appellant
against the order of punishment have been rejected on the technical ground that he has not exercised proper and effective control over HC Vijay
Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that
for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of
service.
In such view of the matter, it cannot be the stand of the respondents that it involved policy decision, when such right has already been directed
to be conferred as per the Government Orders earlier issued. On a reference to entire facts, it is clear that under impugned proceedings which are
executive instructions, the respondents only wanted to clarify the earlier Government Orders, which are in the form of policy decision, only to deny
the right which has been agreed to be conferred on those persons like, the petitioner. Accordingly, the writ petition stands allowed and the
impugned proceedings of the respondents 1 and 2 dated 26.7.2006 and 3.8.2006 are set aside with direction to the first respondent to consider
the claim of the petitioner as Sweeper to bring him under the time scale of pay with effect from 9.3.2001, the date of completion of three years of
service on consolidated pay as per G.O.Ms. No. 199 Municipal Administration and Water Supply Department dated 12.8.1997, followed by
G.O.Ms. No. 84 Municipal Administration and Water Supply Department dated 21.5.1998 and pass appropriate orders conferring benefits on
merits and in accordance with law expeditiously, in any event within a period of eight weeks from the date of receipt of a copy of this order, if
there are no other legal impediments. No costs.