The Pondicherry State Local v. Union Of India

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.02.2017

CORAM:

THE HON'BLE MR.JUSTICE K.K.SASIDHARAN AND THE HON'BLE MR.JUSTICE V.PARTHIBAN W.P.Nos.30522 of 2012, 10732 of 2014 and M.P.No.1 of 2014 in W.P.No.10732 of 2014 1.The Pondicherry State Local Administration Department Technical Staff Association Represented by its President, Mr.K.Sathyanathan No.33, Netaji Nagar, Desa Muthu Mariyamman Koil Street, Uppalam, Puducherry - 605 001 2.K.Mohanraj

...Petitioners in W.P.No.30522/2012

1.The Under Secretary to Govt. (L.A.,) Union Territory of Puducherry.

2.The Director, Local Administration Department, Union Territory of Puducherry.

...Petitioners in

W.P.No.10732/2014 vs.

1.Union of India, Represented by the Additional Secretary (UT) 2.The Under Secretary to Government (L.A.) Union Territory of Puducherry.

3.The Director, Local Administration Department, Union Territory of Puducherry.

4.The Central Administrative Tribunal Madras Bench, High Court Campus, Chennai -104.

...Respondents in

W.P.No.30522/2012

1.The Central Administrative Tribunal Madras Bench High Court Campus, Chennai - 104.

2.Union of India, Represented by the Additional Secretary (UT) 3.The Pondicherry State Local Administration, Department Technical Staff Association Represented by its President Mr.K.Sathyanathan No.33, Netaji Nagar, Desa Muthu Mariyamman Koil Street, Uppalam, Puducherry 4.K.Mohanraj

...Respondents in W.P.No.10732/2014

W.P.No.30522 of 2012 filed under Article 226 of the Constitution of India seeking a writ of Certiorarified mandamus, calling for records relating to the impugned portion of Paragraph 7 of the order of the 4th respondent in O.A.No.1468 of 2010 dated 26.07.2012 stating "from the date of filing of the OA i.e, from 25.11.2010" and quash the same as violative of the doctrine of equal pay for equal work and consequentially direct the respondents to grant the benefits of the order with effect from 01.01.1996 on par with their counter parts in other departments.

W.P.No.10732 of 2014 filed under Article 226 of the Constitution of India seeking a writ of Certiorari, to call for the records pertaining to the order of the first respondent in O.A.No.1468 of 2010 dated 26.07.2012 impugned herein and to quash the same.

For Petitioner in W.P.No.30522/2012 : Mr.K.S.Ilangovan for M/s.Achari and Antoni Associates W.P.No.10732/2014 : Mr.Syed Mustafa, Spl.Govt.Pleader (Puducherry) For Respondents in W.P.No.30522/2012 : No appearance for R1 Mr.Syed Mustafa, Spl.Govt.Pleader (Puducherry) for R2 and R3 R4 - Tribunal W.P.No.10732/2014 : R1 - Tribunal No appearance for R2 Not ready in Notice - R3 and R4

C O M M O N O R D E R K.K.SASIDHARAN,J.

These two writ petitions are directed against the order dated 26 July 2012 in O.A.No.1468 of 2010, whereby and where under, the Central Administrative Tribunal, directed the Union of India and the Union Territory of Puducherry to grant higher scale of pay to Helper, Wireman and Mechanic in the Department of Local Administration from 25 November 2010 on par with their counterparts in the Department of Electricity and Transport.

2. The applicants before the Tribunal is aggrieved by the order granting benefits only from 25 November 2010. According to the applicants, the benefits should be given with effect from 1 January 1996. The Pondicherry State Local Administration Department Technical Staff Association and an individual mechanic are before this Court in W.P.No.30522 of 2012 to give retrospective effect to the direction given for the grant of higher pay scale.

3. The Union Territory of Puducherry has come up with the writ petition in W.P.No.10732 of 2014 challenging the very order in the Original Application on the ground that the Tribunal has no authority to revise the pay scale. The Government of Puducherry has taken a further contention that the Union Territory of Puducherry has no authority to revise the pay scale as it is essentially the function of the Central Government.

4. We have heard the learned counsel for the parties in the respective writ petitions.

5. The petitioners in W.P.No.30522 of 2012 filed Original Application before the Central Administrative Tribunal with a grievance that though the Helper, Wireman and Mechanic in the Local Administration Department are discharging similar duties like their counterparts in the Electricity and Transport Department, similar pay scale was not given to them.

6. The Tribunal taking into account the recommendation made by the Government of Puducherry allowed the original application. There was no independent consideration made by the Tribunal with regard to the pay scale. The order was passed in view of the proposal submitted by the Government of Puducherry to the Central Government for upgrading the pay scale.

7. The documents available on record indicates that the Government of India turned down the proposal made by the Government of Puduhcerry. The communication sent by the Ministry of Home Affairs, dated 27 January 2011 shows that the Government of India carefully considered the recommendation and rejected it by giving cogent reasons. According to the Union Government, the pay scale of Wireman in the Flying Squad of

Local Administration was at par with the Electricity Department after the 4th Pay Commission's recommendation. It was indicated by the Home Ministry that there had been no parity in the pay scale of the post of Helper in the Local Administration Department and the Electricity Department. The Government of India therefore rejected the proposal for upgrading the pay scale.

8. The jurisdiction of the Courts and Tribunals in the matter of fixation of pay scale is very limited. It is essentially the function of the administration. The Government have constituted Pay Commission to fix appropriate pay scale to the employees. Even the successive Pay Commissions have not revised the pay scale of Helper, Wireman and Mechanic working in the Local Administration Department taking into account the pay scale prevailing in Electricity and Transport Department.

9. The Government of Puducherry appears to be very liberal in the matter of making recommendations for granting higher pay scale to its employees. While making such recommendations, the Union Territory of Puducherry Administration failed to consider the basic fact that the Union Territory has no power to fix the pay scale of employees. It is essentially the function of the Union Government. In fact on an earlier occasion, even without the concurrence of the Government of India, the Union Territory of Puducherry constituted a Single Member Committee to review the pay structure of various posts in the Departments of Puducherry Administration.

The Single Member Committee had examined the proposal and enhanced the pay scale of Legal Assistants/Assistant Law officer and Deputy Law Officer without obtaining the approval from the Government of India. The Government of India took serious view of the matter and by letter dated, 23 July 2012 informed the then Chief Secretary, Government of Puducherry that the Union Territory of Puducherry has no authority to revise the pay scale. According to the Central Government, even there is any pay anomaly, the Union Territory should approach the Ministry of Finance through Ministry of Home Affairs for redressal and it would not be proper to by pass the Central Government.

10. It is not the case of the Union or the employees concerned that the Union Territory of Puducherry is entitled to create post, upgrade it or to revise the pay scale without reference to the Union Government.

11. The Central Administrative Tribunal earlier allowed two Original Applications in O.A.Nos.193 and 194 of 2008 filed by N.Murali and Dr.S.D.Balakrishnan and directed the Union Territory of Puducherry to revise the pay scale of Bio-Chemist in the Health Department. The writ petition filed by the Government of Puducherry challenging the order passed by the Tribunal was dismissed. Thereafter, the applicants in the original application initiated proceedings for contempt and to

execute the order. The Tribunal realising the mistake committed earlier refused to execute its own order. Similarly, the plea to initiate contempt proceedings against the Union Territory Administration was also rejected. The said order was challenged before the Division Bench in W.P.No.24012 of 2014.

12. While confirming the order passed by the Central Administrative Tribunal, the Division Bench, in its order dated 10 October 2014 in W.P.No.24012 of 2014 made the following observations:- "9. The petitioners have not demonstrated that the Government of Union Territory of Puducherry have got the power to create post, upgrade it or to revise the pay scale without reference to the Central Government.

10. The President, who is the executive head of the Union Territory is functioning as its head, by virtue of the power conferred on him under Article 329 of the Constitution of India. The Administrator appointed by the President is essentially functioning as a delegate of the President. As observed by the Supreme Court in Government of NCT Delhi vs. All India Central Civil Accounts, JAO's Association and Others (2002) 1 SCC 344, the Administrator has to act under the orders of the President, i.e., the Central Government. "

13. The Central Administrative Tribunal without understanding the scope of its power granted revision of pay scale to the employees of the Local Administration Department. The Tribunal clearly exceeded its jurisdiction by giving such positive direction. We are therefore of the view that the order passed by the Tribunal is liable to be set aside.

14. In the result, the order dated 26 July 2012 is set aside. The Original Application in O.A.No.1468 of 2010 is dismissed.

15. In the up shot, we dismiss the writ petition in W.P.No.30522 of 2012 and allow the writ petition in W.P.No.10732 of 2014. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Asst.Registrar (CS IV ) /true copy/ Sub Asst. Registrar

To 1.The Additional Secretary (UT) Union of India, 2.The Under Secretary to Government (L.A.) Union Territory of Puducherry.

3.The Director, Local Administration Department, Union Territory of Puducherry.

4.The Central Administrative Tribunal Madras Bench, High Court Campus, Chennai -104.

+1 cc to M/s.Achari & Antoni,advocate,sr.11969 +1 cc to Govt.Pleader,sr.12177.

scd(co) krd 27/2 W.P.Nos.30522 of 2012, 10732 of 2014