Raguraman.R v. The Director of Animal Husbandry and Veterinary Services

ORDER: In the Government Order first read above, all the post of umior Veterinary Assistant Surgeons (VAs): have been upgraded as Veterinary Assistant Surgeons (VAS) and also ordered that there will not lie any recruitment of Veterinary Doctors in the cadre of Junior Veterinary Assistant Surgeon in future. as the post of the Assistant Voterinary Surgeon / Veterinary: Assistant Surgeon have same qualification, same mode of recruitment and similar nature af work, but carry. different scale of pay which creates disparity and complications. In the Government Order second read above, the Government have approved the list of 444 candidates selected by the Tamil Nadu Public Service Commission for appointment by direct recruitment as Junior Veterinary Assistant Surgeon for the year 2009. The Commissioner of Animal Husbandary and Vertinary services was also directed to issue appointment order to the above 444 candidates following certain guidelines. The Commissioner of Animal Husbandry and Vertinary Services has also issued appointment orders and all candidates joined duty".

17.Having issued an order vide G.O.2D No. 42, dated 28.05.2013 for the appointment of the reserve list candidates in the petitioners recruitment batch, thereby, directly appointing them as Veterinary Assistant Surgeons, instead of Junior Veterinary Assistant Surgeon, despite those reserve list candidates scoring much less marks than the petitioners and were placed behind the petitioners in the merit list denying the same benefits to the petitioners, who are upgraded from the post of Junior Veterinary Assistant Surgeon to the post of Veterinary Assistant Surgeon would certainly create a disparity. The same would amount to creation of two grades with different scales in the cadre of Veterinary Assistant Surgeons, who are doing the same and similar work and hence, the same would be violative of the right to have equal pay for equal work.

18.Though Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, the qualities or characteristic must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purpose of pay. However, in these cases the candidates, who were placed behind the petitioners in the waiting list has been sponsored by the Tamil Nadu Public Service Commission and the Government has duly appointed them directly to the post of Veterinary Assistant Surgeons. But the petitioners, who are upgraded from the post of Junior Veterinary Assistant Surgeons to the post of Veterinary Assistant Surgeons, who have been discharging the same nature of work has been deprived by the impugned order of recovery and refixation of the petitioners' basic pay negating their equal work, which would obviously entitle them for equal pay at par with the directly recruited Veterinary Assistant Surgeons.

19.The classification of posts and determination of pay structure obviously comes within the exclusive domain of the executive and normally the High Courts cannot sit in judicial review over the wisdom of the executive in prescribing certain pay structure in a particular service. The bone of contention made by the learned Additional Advocate General is that the benefits of G.O.MS No. 2, dated 05.01.2012 could be extended to the petitioners only from the date of the said GO and the same will have only prospective effect and cannot be given retrospective effect from the date of appointment of the petitioners also cannot be negated. However, the said argument gets defeated by the subsequent decision of the Government to issue order of appointment to the reserve list candidates of the petitioners batch vide GO 2D No. 42, dated

28.05.2013 directly appointing them as Veterinary Assistant Surgeons. Thus, the recruitment Notification for the recruitment of Veterinary Assistant Surgeon, dated 25.02.2009 and the supplement Notification for the direct recruitment of the post of Junior Veterinary Assistant Surgeon, dated

28.02.2009 resulted in the recruitment of three categories of Veterinary Assistant Surgeons. First category is the most meritorious candidates, who got first to 60th rank and who were appointed directly as Veterinary Assistant Surgeons. The petitioners would fall under the second category, who were appointed as Junior Veterinary Assistants, since they were placed beyond 60th rank, during February, 2010, who were later upgraded to the post of Veterinary Assistant Surgeons, after abolition of the post of Junior Veterinary Assistant Surgeons by the issuance of G.O MS No. 2 of 2012, dated 05.01.2012. The third category of Veterinary Assistant Surgeons are those, who were appointed directly as Veterinary Assistant Surgeons from the waiting list of the post of Junior Veterinary Assistant Surgeons 2009 obviously, who had scored lesser marks than the petitioners. Thus, the less meritorious candidates being placed in a higher pedestal than that of the petitioners creates disparity among the three categories of the Veterinary Assistant Surgeons recruited under a single recruitment process vide Notifications, dated 25.02.2009 and 28.02.2009 respectively.

20.It is the considered view of this Court that the doctrine of equal pay for equal work is not an abstract doctrine and the same is capable of being enforced by a Court of law. In the instant cases, since all the three categories of Veterinary Assistant Surgeons as discussed supra are rendering equal work of equal value, equal pay must have been the Rule. However, the Government claims that of the second category of the Veterinary Assistant Surgeons except the petitioners and few others, the remaining 400 plus Junior Veterinary Assistant Surgeons recruited along with writ petitioners and later, upgraded as Veterinary Assistant Surgeons are drawing salary by refixation of their pay only from the date of G.O.Ms.No. 2, ie., from 05.01.2012 and not from the date of their respective appointment.

21.Consciously recording the said submission of the Government, I have no hesitation to hold that the second category of Veterinary Assistant Surgeons deserves equal treatment on parity with the first and third category of Veterinary Assistant Surgeons. Taking into account that all the three category of Veterinary Assistant Surgeons are governed by the same statutory rules and conditions of service. However, the powers of judicial review in the matters involving financial implications are very limited. The wisdom of the Courts in matters concerning finance is ordinarily not amenable to judicial review unless a gross case of arbitrariness or unfairness is established by the aggrieved party.

22.The Hon'ble Apex Court in the case of Union of India Vs Indian Navy Civilian Design Officers Association and another reported in 2023 Live Law Supreme Court 129 has held that, the powers of judicial review in the matters involving financial implications are very limited. The wisdom and advisability of the Court in the matters concerning the finance are ordinarily not amenable to judicial review unless a gross case of arbitrariness or unfairness is established by the aggrieved party.

23.In the cases in hand, the unequal treatment of the three categories of Veterinary Assistant Surgeon is obviously a gross case of arbitrariness and unfairness. However, in the absence of any specific date to give effect to the mandates of a Government order, any Government order would take effect only from the date of the Government order prospectively. Since the second category of Veterinary Assistant Surgeons have been upgraded from the post of Junior Veterinary Assistant Surgeons only on the issuance of G.O.Ms. No. 2, dated 05.01.2012, the benefits of the same cannot be extended retrospectively to the petitioners from the date of their appointment.

24.In view of the same the petitioners are at liberty to approach the respondents seeking refixation of pay with effect from their date of appointment in the manner known to law, if so advised. Analysis of the second issue:-

25.The Hon'ble Apex Court in the case of State of Punjab and others Vs Rafiq Masih (Whitewasher) reported in 2014 (08) SCC page 883 has dealt with the case of recovery and the relevant portion of the same is extracted as follows: "It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover".

26.The Government of Tamil Nadu in G.O.Ms. No. 286, dated

28.08.2018 of the Finance Pension Department has issued orders with respect to recovery of wrongful / excess payments made to the employees / pensioners / family pensioners and the relevant portion of the said Government order, which is applicable to the facts and circumstances of these cases, extracted as follows: "4. In view of the law declared by the Courts, the Government directs that the Administrative Departments of Secretariat, Heads of Department and Head of Offices are advised to deal with the issue of wrongful / excess payments made to Government servants / Pensioners / Family Pensioners in accordance with the decision of the Hon'ble Supreme Court in Civil Appeal No. 11527 of 2014 (arising out of SLP

(C) No.11684 of 2012) in State of Punjab and others etc vs Rafiq Masih (White Washer) etc as detailed below.

(i). In all cases where the excess payments on account of wrong pay / pension / family pension fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc come to notice, immediate corrective action must be taken.

(ii). In a case like this where the authorities decide to rectify an incorrect order, a show-cause notice may be issued to the concerned employee / pensioner / family pensioner informing him/her of the decision to rectify the order which has resulted in the overpayment, and intention to recover such excess payments. Reasons for the decision should be clearly conveyed to enable the employee / pensioner / family pensioner to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if any, made by the employee / pensioner / family pensioner."

27.The dictum established by the White washer's case that, recovery from the employees, when the excess payment has been made for a period in excess of five years before the order of recovery is impermissible would squarely cover the lis on hand, since the recovery orders came to be issued by the respondents 1 and 3 after making an alleged excess payment for more than 7 years. That apart, violating the directions / mandates of G.O.Ms. No. 286, dated 28.08.2018 the impugned order of recovery came to be issued by the 1st and 3rd respondents by a cryptic non speaking order without putting the petitioners on notice. For these two reasons, this Court has no hesitation to set aside the impugned order passed by the 1st respondent vide proceedings in Na.Ka.no. 4260/M1/2022, dated 04.04.2023 and the consequential order passed by the 3rd respondent, dated 28.04.2023 vide proceedings in Na.Ka.no. 2573/Aa/2022 and accordingly, both the orders stand quashed.

28.Though the principle of equal pay for equal work is not expressly declared by our Constitution to be a fundamental right, Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

29.In these batch of writ petitions, the petitioners, who were employed originally as Junior Veterinary Assistant Surgeon were later upgraded to the post of Veterinary Assistant Surgeon, on the ground that it creates disparity by a shift in policy of the Government by issuance of G.O.Ms. No. 2, dated 05.01.2012. Though the petitioners and 422 similarly situated employees have been upgraded to the post of Veterinary Assistant Surgeons, the Government has consciously refrained from giving pay parity to the said class of Junior Veterinary Assistant Surgeons at par with the directly recruited Veterinary Assistant Surgeons. The request of the petitioners to share the equal benefits for their equal work of equal value under Article 14 of the Constitution enjoins the state not to deny any person equality before law or the equal protection of laws. At the same time, I am afraid if I could overlook the constrains arising out of or connected with the availability of State resources. Therefore, unduly burdening the State for implementing the constitutional mandates would create problems which the State may not be able to stand. Therefore, with judicious restraint with the hope and trust that the instrumentality of the State must realize that it is charged with a big trust, this Court consciously refrain from directing the respondents to disburse the basic pay given to the petitioners prior to April 2023 without any reduction.

30.Accordingly the writ petitions are partly allowed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.

26.03.2024 NCC : Yes / No Index : Yes / No Internet : Yes PNM To

¶1The Director of Animal Husbandry and Veterinary Services, Integrated Animal Husbandry and Fisheries Department Complex, Veterinary Hospital Compound, Nandaman, Chennai.

¶2The Regional Joint Director of Animal Husbandry, Madurai District.

¶3The Assistant Director of Animal Husbandry, Thirumangalam Division, Madurai District. W.P.(MD).Nos.1980,e1971,e1542,e2058,e2102,e2121,e2174eande2403eofe2024 L.VICTORIAoGOWRI,oJ. oooooooooooooooooo PNM COMMONooORDERoIN W.P.(MD).Nos.1980,o1971,o1542,o2058,o2102,o2121,o2174oando2403oofo2024 andoWMP(MD)oNos.1546,o1963,o1977,o2072,o2102,o2116,o2117,o2185,o2187,o 2410,o2411,o5846,oo5847,oo5848,oo5849,oo5850,o5851,o5852oando5853oofo2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.03.2024 CORAM THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI and WMP(MD) Nos.1546, 1963, 1977, 2072, 2102, 2116, 2117, 2185, 2187, 2410, 2411, 5846, 5847, 5848, 5849, 5850, 5851, 5852 and 5853 of 2024 In WP(MD) No.1980 of 2024: R.Raguraman ... Petitioner Vs 1. The Director of Animal Husbandry and Veterinary Services, Integrated Animal Husbandry and Fisheries Department Complex, Veterinary Hospital Compound, Nandaman, Chennai. 2. The Regional Joint Director of Animal Husbandry, Madurai District. 3. The Assistant Director of Animal Husbandry, Thirumangalam Division, Madurai District. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus to call for the records relating to the order passed by the 1st respondent, dated 04.04.2023 in his proceedings Na.Ka.no. 4260/M1/2022 and consequential order passed by the 3rd respondent, dated 28.04.2023 in his proceedings Na.Ka.no. 2573/Aa/2022 and quash the same as illegal and consequently direct the respondents to disburse the basic pay given to the petitioner prior to April 2023 without any reduction. For Petitioner : Mr. R.Gandhi, Senior Counsel For Respondents : Mr.P.Veera Kathiravan Additional Advocate General Assisted by Mr.J.John Rajadurai Government Advocate COMMON ORDER All the writ petitions have been filed seeking to quash the respective impugned orders of the respondent as illegal and unlawful and to direct the respondents to disburse the basic pay given to the petitioners without any reduction. Factual Matrix: 2(i).The Government of Tamil Nadu issued G.O.Ms. No. 64 of 2008, dated 28.05.2008, Animal Husbandry, Dairying and Fisheries Department, for upgradation of 444 Grade-1 Veterinary sub centers to upgraded Veterinary sub centers and appointment of Junior Veterinary Assistant Surgeons with an object to provide quality veterinary health care service. The said G.O. was issued for the purpose of appointing Junior Veterinary Assistant Surgeons possessing a degree in Veterinary Sciences in these Upgraded Veterinary sub centers with a scale of pay of Rs. 5000-150-8000. The G.O. further mandated that the recruitment for the post of Junior Veterinary Assistant Surgeons would be done through Tamil Nadu Public Service Commission and the said Junior Veterinary Assistant Surgeons would report to the Veterinary Assistant Surgeons/Assistant Directors of Animal Husbandry having jurisdiction. The channel for promotion of the Junior Veterinary Assistant Surgeon in the Upgraded Veterinary sub centers would be through promotions to the post of Veterinary Assistant Surgeon. The G.O. further mandated to cause necessary amendments to the service rules in this regard. (ii).On 25.02.2009, the Tamil Nadu Public Service Commission published a Notification for the direct recruitment of 59 vacancies to the post of Veterinary Assistant Surgeon, following which, on 28.02.2009, the Tamil Nadu Public Service Commission published a supplement Notification for the direct recruitment of 444 vacancies to the post of Junior Veterinary Assistant Surgeons. For both the posts of Veterinary Assistant Surgeons and Junior Veterinary Assistant Surgeons, the entire selection process such as qualification, syllabus and examination were one and the same. The candidates, who got 1st rank to 59th rank were appointed as Veterinary Assistant Surgeons, whereas, the candidates from 60th rank were appointed as Junior Veterinary Assistant Surgeons. That apart, a reserve list was also maintained by the Tamil Nadu Public Service Commission. (iii).While so, the Government of Tamil Nadu issued yet another G.O. Ms. No. 2, Animal Husbandry, Dairying and Fisheries Department, dated 5.1.2012 for the purpose of upgradation of Junior Veterinary Assistant Surgeons as Veterinary Assistant Surgeons by designating the upgraded sub centres as Veterinary Dispensaries. The said G.O. paved the way f