D ISSAC JEPAKUMAR Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) This writ petition has been filed for the issuance of a writ of certiorarified mandamus, to quash the letter No.5395/HB.1(2)94-14 dated 07.02.1994 issued by the first respondent after calling for the concerned records from him and consequently direct the respondent to revise the petitioner's pay in the post of Community Officer and Community Development Officer and subsequent promotions on par with the scale of Rs.1820-3200, 2200-4000 (Selection Grade) and Rs.2,200-4000 respectively, from the dates they were revised in CMDA with all attendant benefit of arrears of salary and allowances, etc.

(2.) In the affidavit filed along with the writ petition, it is stated as follows: The petitioner was appointed on 12.10.1978 as Social Worker which is now known as "Community Officer" in the Chennai Metropolitan Development Authority, temporarily on a consolidated pay of Rs.500/-. By GOMS.No.1380 Housing and Urban Development Department dated 21.10.1980, the Community Development Wing in the CMDA was bifurcated and employees were transferred to the Tamil Nadu Housing Board and Tamil Nadu Slum Clearance Board. By order dated 25.02.1981, the second respondent initially transferred the petitioner from CMDA to the TNHB with an assurance of all attending benefits. No service rules were framed either by CMDA or by TNHB at that time; only by GOMS.No.157 dated 01.03.1984, service rules were issued. The service of the petitioner was not regularised nor any promotion given to him. Amendment were carried out by CMDA on 30.07.1988, in relation to the service of Community Development Wing as Special Regulations, by which three category of posts namely (a)Chief Community Development Officer, (b)Community Development Officer, and (c) Community Officer were created. Method of appointment to these categories have been prescribed; a revised scale of pay was also fixed. The category III namely the post of 'Community Officer' was considered to be the Feeder Category to the next higher post of 'Community Development Officer' which may be filled either by promotion or by deputation or by direct recruitment. The person holding the post of community officer for 5 years is eligible to be promoted as Community Development Officer. The petitioner completed five years of service in the year 1983. But, no promotion was given nor his service were regularised by the second respondent. Persons entered service much later to the petitioner in the CMDA were promoted to the next higher post. Hence, the petitioner filed W.P.No.3422 of 1989 for a writ of mandamus to direct the respondents to transfer the service of the petitioner to CMDA; The writ petition was disposed of by order dated 20.03.1990 directing the Tamil Nadu Housing Board to retain the service of the petitioner and to regularise the same conferring all consequential benefits including the promotion. This order was passed on the representation made by the Housing Board that the service of the petitioner should be retained in the Housing Board. In the mean time, V-Pay Commission revised the scale of pay with effect from 01.06.1988, but that was not extended to the petitioner till 19.02.1991. Promotion was denied to the petitioner on the ground of want of vacancy due to the deputation of one T.S.Sundari. However, the petitioner was temporarily promoted to the next higher post of Community Development Officer on 14.02.1991. The persons equally placed as that of the petitioner in CMDA and doing the same nature of work are drawing higher scale of pay at Rs.1820-60-2300-75-3200. A request to pay the same salary was unjustly negatived. The Government in its order dated 07.02.1994, asserted that the duties and responsibilities of the post of Community Officer in TNHB and CMDA are different; but it is factually incorrect. Payment of lesser salary to the petitioner vis a vis those in CMDA is violative of Articles 14 and 16 of the Constitution of India.

(3.) In the counter filed by the respondents it is stated as follows:- The petitioner was initially employed in CMDA as "Social Worker." Thereafter, the entire Community Wing in CMDA was transferred to TNHB and Slum Clearance Board for permanent absorption as Community Development Officer by GOMS.No.1380. The petitioner's service was regularised with effect from 28.02.1987f i.e., from the date of absorption in the Tamil Nadu Housing Board. Thereafter, the petitioner was promoted as Community Development Officer on 14.02.1991, in the scale of pay of Rs.1600-50-2300-60-2660, pending approval of the Government on the basis of the recommendation of the V-pay Commission. The CMDA adopted a higher scale for the same post at Rs.1820-60-2300-75-3200. Hence, the petitioner requested to fix higher pay as in the CMDA. This request was recommended to the Government and the Government rejected his claim by letter dated 07.02.1994, on the ground that the duties and responsibilities of the post of Community Development Officer in CMDA and TNHB are not the same. Even though the petitioner is the regular employee as Community Development Officer in the Housing Board, his service were utilised for guiding the economically weaker sections of TNUDP allottees before the closure of TNUDP division. The petitioner's services were utilised for the work of sales of unsold units and his services were also been utilized as a coordinator for all sales schemes in respect of divisions of Chennai circle and necessary orders were issued to that effect. The post of Community Development Officer is still existing in TNHB, but service of the petitioner has been utilised for selling of unsold units. Hence, his request for revision of scale of pay on par with CMDA cannot be considered. If the CMDA is willing to take back the service of the petitioner, the Board will have no objection in sending the petitioner back to CMDA. In fact, CMDA sent another batch of Community Officers and deputed them to Slum Clearance Board and their pay is fixed under V-pay Commission as that of TNHB. Hence, the petitioner request cannot be considered as the service Rules of CMDA is different from TNHB.