Is the scale of pay fixed by the Government in the order regularising daily wage employees final and governing their pay?

(Judgment of the Court was delivered by S.M.Subramaniam J.) Under assail is the writ order dated 17.10.2023 passed in W.P.No.18375 of 2021. Tamil Nadu Water Supply and Drainage Board (hereinafter referred to as 'TWAD Board') preferred the present intra court appeal under Clause XV of the Letters Patent.

Notices were served to the respondents. Mr.M.Loganathan, learned counsel who appeared for the writ petitioners in the writ petition, appeared in the present writ appeal also.

The facts in nut shell are that the respondents / writ petitioners instituted the writ petition seeking the scale of pay applicable to the post of Grade I technical post. However, the Board contends that these employees are engaged as Nominal Muster Roll employees (hereinafter referred to as ‘NMRs’) and their services were regularised in pursuance to G.O.Ms.No.111, Municipal Administration and Water Supply Department dated 29.09.2006 and subsequent to the regularisation of their services, they have been fixed with the scale of pay as stipulated in G.O.Ms.No.111. In other words, these regularised NMRs are eligible to draw scale of pay applicable to Grade II technical posts.

The case of the contesting respondents is that, their services are regularised by virtue of G.O.Ms.No.111, Municipal Administration and Water Supply Department dated 29.09.2006. However, they are SSLC passed candidates possessing ITI qualification and therefore, the scale of pay is to be fixed as applicable to Grade I technical posts.

Question arises whether these respondents herein are eligible to draw scale of pay as applicable to the technical posts of Grade-I or Grade-II?

Learned Senior Counsel Mr.S.Ravindran appearing on behalf of the Board would mainly contend that the respondents were not appointed to the technical posts of Grade-I. They were initially engaged as NMRs and their services were regularised by virtue of the policy decision taken by the Government in G.O.Ms.No.111 dated 29.09.2006. The said Government Order in clear terms stipulates the scale of pay which is applicable to Grade II technical posts and therefore the respondents are eligible to draw scale of pay applicable to Grade II technical posts. The mode of appointment to the technical posts of Grade-I is, direct recruitment or by way of promotion. The respondents herein are neither directly recruited nor promoted to the post of Grade-I technical posts. Since they were regularised first time to the entry cadre, their pay scale is to be fixed as stipulated in G.O.Ms.No.111 dated 29.09.2006.

Learned Senior Counsel would contend that several errors have been committed by the Board authorities by fixing the scale wrongly to the employees. Audit objections were raised. Thereafter, the erroneous scale of pay granted to these regularised NMR employees were revised and refixation was done based on their eligibility as per G.O.Ms.No.111. However, he would contend that the Board has taken a decision not to recover the excess salary already paid to these employees. Therefore, their claim that they have passed SSLC has no relevance in the context of their initial appointment since they were regularised from NMR category.

Mr.Loganathan, learned counsel appearing on behalf of the contesting respondents would oppose by stating that all the respondents have completed SSLC and ITI. Therefore, they are entitled to claim the scale of pay as applicable to the technical posts of Grade I. He would further submit that the classification of those posts are done only based on educational qualification. SSLC passed candidates are eligible to the scale of pay applicable to Grade-I and SSLC failed candidates are eligible to draw the scale of pay applicable to Grade-II. Therefore, respondents are entitled to get the pay applicable to the technical posts of Grade-I. He submits that the Division Bench of Madurai Bench has passed an order in favour of similarly placed employees like that of the respondents. The Board also granted Grade I scale of pay to those employees. While so, the said benefit cannot be denied to the respondents. Thus, the order of the learned single Judge is to be confirmed.

This Court has considered the rival submission made between the parties to the lis on hand.

The uncontroverted facts between the parties are that the respondents / writ petitioners herein were initially engaged as daily wage labourers (NMRs). By virtue of their long service as daily wage employees, the Government took a policy decision to regularise their services and accordingly issued G.O.Ms.No.111, Municipal Administration and Water Supply Department dated 29.09.2006. Paragraph 4 of the said Government Order reads as under:

The Government Order regularising the services, in unambiguous terms, reiterates that 255 persons regularised as Electricians are eligible to draw the scale of pay of Rs.3050-75-3950-80-4590, 230 persons regularised as Fitters are eligible to draw the scale of pay of Rs.3050-75-3950-80-4590 and 387 NMRs regularised as Maintenance Assistants are eligible to draw the scale of pay of Rs.2550-55-2660-60-3200.

This court is of the considered view that the Government, while granting the benefit of regularisation to these daily wage NMRs, has specifically fixed the scale of pay in the order itself. When the Government has fixed the scale of pay for a particular post, then the said scale of pay becomes final. Pertinently, G.O.Ms.No.111 dated 29.09.2006 remains unchallenged. Therefore, application of any other Government Order classifying the scale of pay applicable to Grade I and Grade II technical posts would not arise at all.

Even then, Board Proceedings No.505 dated 12.12.1986, which was issued prior to regularisation of the services of these respondents would not have any application. G.O.Ms.No.111 was issued on 20.09.2006, but B.P.No.505 was issued on 12.12.1986 ie., 20 years prior to the regularisation of the services of the respondents. Thus, B.P.No.505 dated 12.12.1986 has absolutely no connection or relevance with reference to the regularisation of the NMRs as regular employees in the time scale of pay. However, the respondents are relying on B.P.No.505 dated 12.12.1986 by stating that they have passed SSLC and therefore, they are eligible to draw the scale of pay applicable to Grade-I technical posts. As per the annexure to B.P.No.505, SSLC passed candidates are eligible to draw the scale of pay of Rs.670-1075 and SSLC failed candidates are eligible to draw scale of pay of Rs. 555-790. In this context, the learned counsel for the respondents would contend that they have passed SSLC and therefore they are eligible to the pay scale of Rs.610-1075.

Reliance placed by the respondents on B.P.No.505 dated 12.12.1986 is irrelevant on two grounds. Firstly, the said Board Proceedings was of the year 1986, but the respondents were regularised in the year 2006 by way of a policy decision. The Government in G.O.Ms.No.111 dated 29.09.2006, in clear terms stipulated the scale of pay applicable to these NMR employees who were brought under regular time scale of pay.

Secondly, the mode of appointment to Grade-I technical posts as per the service rules is by direct recruitment or by way of promotion. But, in the present case admittedly none of these respondents regularised from NMRs were neither appointed directly not promoted to the post of Grade-I technical posts. Since they are not falling under either of the categories viz., direct recruitment mode or by way of promotion, their claim is stale and based on inapplicable Board Proceedings which was issued 20 years prior to the date of their regularisation of their services from the NMR category.

Yet another ground has been raised on behalf of the respondents that some of the employees were already benefitted by virtue of either the order passed by the learned Single Judge or the Division Bench and some of those orders were already implemented by the Board and therefore these respondents need not be discriminated.

Regarding the erroneous implementation of certain orders of the Courts in the absence consideration of relevant facts, the same need not be considered as a precedent to continue the mistake perpetually. The Full Bench of this Court in the case of A.Sundaram -vs- State of Tamil Nadu and Others¹ held as follows: “12. In the past, individual and independent court orders have been granted in few cases and the grounds of relief are based more on misplaced sympathy than on the foothold of the Rules/law in place. Consequently, such individual orders have been followed as precedent in the consequential similarly placed cases creating a spinning wheel of precedents to choose from, thereby causing inconsistencies and diluting the actual Rules/law.”

It is needless to state that the Board authorities are expected to maintain consistency. However, certain errors if done unintentionally by the authorities, such mistake can be corrected and the action of the authorities may be condoned. If any errors or mistakes or irregularities are committed knowingly by the authorities, then they are liable to be proceeded against under the relevant service rules and departmental disciplinary proceedings are to be initiated.

Scale of pay is a complex issue and an executive function. Equation of posts of fixing of scale of pay is to be left to the expert body. The Apex Court in the case of State of Haryana -vs- Haryana Civil Secretariat Personal Staff Association² held that, granting of pay scales is purely executive function and hence the Courts should not interfere with the same. It may have cascading effect. Hence the Courts should exercise judicial restraint and not to interference in such executive functions.

The Courts in exercise of their limited power of judicial review can only examine whether the decision of the authorities is resulting in unjust and prejudicial to a particular set of employees. The Courts should interfere when such decision is unjust and prejudicial to a section of employees and the Government, while taking the decision has ignored the facts which are material and relevant for the decision in the matter. Even in such cases, the Courts cannot remand the matter to reconsider the fixation or re-fixation, as the case may be by the competent authorities. The Court cannot direct the authorities to fix a particular scale of pay, which results in complications and opening up of pandora’s box, wherein several employees approach the Court based on such judicial decisions, finally resulting in huge financial burden.

In the present case, admittedly the respondents were engaged as daily wage labourers (NMRs). The benefit of regularisation was extended by the Government by way of policy decision in G.O.Ms.No.111 dated 29.09.2006, The said Government Order in clear terms stipulates that, the time scale of pay under which these employees were regularised alone is to be granted by the Board consistently to all the NMRs who were regularised in the time scale of pay. Therefore, Board Proceedings in B.P.No.505 dated 12.12.1986 which was issued 20 years prior to the date of regularisation of the respondents would not have any application since the said board proceedings in B.P.505 has not dealt with a situation where these NMRs were regularised in the time scale of pay by way of policy decision by the Government. This vital fact has not been considered in previous decisions by the Writ Courts. Pertinently, G.O.Ms.No.111 remains unchallenged.

Since the material facts relevant for deciding the correctness of the scale of pay has not been taken into consideration by the Writ Court while dealing with the writ petitions on earlier occasions, this Court is of the considered view that those decisions cannot be followed as precedents to commit further mistakes or to continue the mistakes in perpetuity. Therefore, we are inclined to interfere with the writ order impugned. Accordingly, the writ order impugned dated 17.10.2023 made in W.P.No.18375 of 2021 is set aside and the writ appeal stands allowed. No costs. Consequently, connected miscellaneous petition is closed. (S.M.S.,J.) (K.G.R.,J.) 28-09-2026