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2023 Supreme(Mad) 2134
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
R. Pallavan – Appellant
Versus
The Chief Educational Officer, Chief Educational Office, Sivagangai & Others – Respondents
W.P. (MD) No. 8799 of 2023 & W.M.P. (MD) No. 8043 of 2023
Decided On : 25-07-2023
For the Petitioner:R. Rajamohan, Advocate. For the Respondents: N. Satheesh Kumar, Additional Government Pleader.
The main legal point established in the judgment is the principle of equal pay for equal work as a fundamental right and the requirement for a formal order of termination to snap the employer-employee relationship.
Headnote:
Writ Petition - Employment - G.O.Ms.No.47 School Education Department dated 02.03.2012, G.O.Ms.No.50 Education Department dated 08.03.2019 - The court discussed the provisions of G.O.Ms.No.47 School Education Department dated 02.03.2012 and G.O.Ms.No.50 Education Department dated 08.03.2019. The court emphasized the principle of equal pay for equal work enshrined in Article 14 and 16 of the Constitution of India and its applicability to temporary employees. The court also highlighted the right of equal pay for equal work as a fundamental right and the directive principle of State policy towards securing equal pay for equal work for both men and women. The judgment emphasized the need for a formal order of termination to snap the employer-employee relationship and granted relief to the petitioner based on this principle.
Fact of the Case:
The petitioner, appointed as a Sweeper, remained unauthorisedly absent from duty due to Paranoid Schizophrenia. The petitioner sought regularization of the period of absence and challenged the rejection order of rejoining duty.
Finding of the Court:
The court found that the petitioner's employer-employee relationship had not been terminated due to the absence and granted relief to the petitioner based on this finding.
Issues: The issues involved the regularization of the petitioner's absence due to medical reasons and the applicability of G.O.Ms.No.47 School Education Department dated 02.03.2012 and G.O.Ms.No.50 Education Department dated 08.03.2019.
Ratio Decidendi: The court held that the employer-employee relationship does not automatically snap due to unauthorised absence and emphasized the need for a formal order of termination. The court also applied the principle of equal pay for equal work as a fundamental right and directed relief to the petitioner based on this principle.
Final Decision: The court set aside the rejection order and directed the respondents to post the petitioner in the post of Sweeper, granting the petitioner the benefit of the previous court order. The petitioner could claim monetary benefit only upon formally reporting for duty.
JUDGMENT
(Prayer: Writ petition is filed under 226 of the Article Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent dated 18.03.2021 in Na.Ka.No.2652/A1/2019 and to quash the same, inconsequentially directing the respondents to permit the petitioner to rejoin duty by granting extraordinary leave on loss of pay for the period from 02.06.2016 to 24.04.2019 based on the Medical Board Report dated 20.01.2020 in terms of Rule 15 to 23 and 85 of the Fundamental Rules and consequently direct the respondents to pay Regular Time Scale of Pay by extending the benefit of G.O.Ms.No.50 Education Department dated 08.03.2019.)
1. Heard the learned counsel on either side.
2. The petitioner was appointed as Sweeper in the third respondent school vide order dated 23.11.2012 passed by the second respondent. He was in the special time scale of pay of Rs.1,300 – 3,000 with Grade Pay of Rs.300/-. His appointment was made in terms of G.O.Ms.No.47 School Education Department dated 02.03.2012. The petitioner was working without giving room for complaint till 02.06.2016. Thereafter he remained unauthorisedly absent. The petitioner''s case is that he was suffering from Paranoid Schizophrenia. He became normal only in the year 2019. He sought to rejoin. He wanted the period from 02.06.2016 to 24.04.2019 to be regularised. He produced medical certificates. But his request was not accepted. He therefore filed W.P.(MD)No.12701 of 2019. The writ petition was disposed of with a direction to the department to consider the petitioner''s case in the light of the report of the Medical Board. The Medical Board certified that he was fit for rejoin. The second respondent considered the case of the petitioner and passed the impugned rejection order dated 18.03.2021. Challenging the same, the present writ petition came to be filed.
3. The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to quash the impugned order and grant relief as prayed for.
4. The first respondent has filed counter affidavit and the learned Additional Government Pleader took me through its contents. It is accepted that the petitioner was appointed as Sweeper on 23.11.2012. Since the post of special time scale of pay was abolished after issuance of G.O.Ms.No.50 School Education Department dated 08.03.2019, the petitioner''s request for rejoining duty is not legally sustainable. The petitioner had remained authorisedly absent for more than three years. The question of taking disciplinary action did not arise because the petitioner was not a member of any service. By the time, the petitioner was ready to rejoin duty, the post itself got abolished. The department has now outsourced the work of sweepers and scavengers. Therefore, the order impugned does not warrant any interference. The respondents pressed for dismissal of the writ petition.
5. I carefully considered the rival contentions and went through the materials on record.
6. Vide G.O(Ms)No.47 School Education (R1) Department dated 02.03.2012 a number of Scavenger posts were sanctioned and the appointees were directed to be paid special time scale of pay of Rs.1,300 – 3,000 +Grade Pay of Rs.300. The persons who were appointed pursuant to the said Government Order, formed an Association and they filed W.P(MD)No. 17663 of 2014. The said writ petition was allowed by me on 25.01.2018 in the following terms:
“8. This Court is of the view that the principle of equal pay for equal work enshrined in Article 14 and 16 of Constitution of India is too sacred to be defeated by invoking the principle of estoppel. The Hon''ble Supreme Court of India in decision reported in (2017) 1 SCC 148 – State of Punjab and others vs. Jagjit Singh and others held that even temporary employees will be entitled to draw wages at the minimum of the pay scale as extended to the regular empl
