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Judgment
R. Balasubramanian, J.—The Petitioner has filed the above Writ Petition praying to issue a Writ, order or direction in the nature of a Writ of Certiorarified Mandamus calling for G.O. No. 666 Finance (Pay Cell), dated 27.6.1989 from the first Respondent and to quash the last sentence commencing with the words "As for as" and ending with the words ""and nil as on 1st June, 1992"" occurring in para 12 of the said G.O. is concerned and consequently direct the first Respondent herein to pay the special pay of Rs. 75/- p.m. or its equivalent as personal pay to the Petitioner herein with effect from 1.6.1990 in accordance with Fundamental Rule 23 Ruling 6 and pass such further or other orders as this Court may deem fit and necessary.
In the affidavit filed in support of the Writ Petition, the Petitioner would contend that he got appointed as the Manager in the office of the Government Pleader, High Court, Madras with effect from 1.10.1983 which got regularised later from the same day that the post of Manager carried a Special Pay of Rs. 75/- as originally sanctioned by G.O. Ms. No. 2456 Public (General-F) Dept., dated 14.09.1973 for specially arduous nature and duties attached to the post vide Fundamental Rules 9 (25) that the Petitioner's predecessor enjoyed the said Special Pay till his retirement and the extra benefits arising therefrom as the Special Pay is generally taken into account along with the Basic Pay for the purpose of calculating D.A., H.R.A., C.C.A., and Pensionary benefits.
The further case of the Petitioner as projected in the writ petition is that from 1.10.1983, he too was drawing the special pay with the consequential benefits as aforementioned, that the III Pay Commission in 1978, the IV Pay Commission in 1984 and the V. Pay Commission in 1988 did not enhance the amount even though the Special Pay of various other posts was revised by the successive Pay Commissions on a pick and choose basis, that in the past 15 years there had been phenomenal increase in the burden of work at his office; that while so ,the V. Pay Commission and the Government have acted arbitrarily and erroneously to withdraw the Special Pay of the Manager and some other posts by not including them in the list under Annexure VIII of G.O., dated 27.6.1989, para 12 of the said G.O. Ms. No. 666 Finance (Pay Commission) Dept., dated 27.6.89 which demonstrates the arbitrary nature is extracted hereunder:
Reviewing the case for retention or otherwise of the Special Pay sanctioned to Government employees strictly with reference to the norms laid down in the Fundamental Rules, the Pay Commission has not recommended any general revision of Special Pay for all categories except for a very few categories to which it felt that either the existing quantum of Special Pay had not been revised for quite some time or is grossly inadequate. In this view, the Pay Commission has modified the list of posts identified by the Fourth Tamil Nadu Pay Commission for grant of Special Pay and it has recommended withdrawal of Special Pay to all other categories of posts at least in a phased manner over a period of three years. The Government accept the recommendation of the Pay Commission as far as it relates to retention of Special Pay, enhancement of Special Pay for certain posts and sanction of Special Pay for certain other posts and direct that these posts shall carry Special Pay as indicated in the Appendix
VIII. As far as the withdrawal of the Special Pay of several other categories as recommended by the Pay Commission is concerned, the Government direct that the Special Pay be withdrawn in a phased manner in three annual instalments commencing from 1st June 1990 for example a Special Pay of Rs. 150/- will stand reduced to Rs. 100/- as on 1st June 1990, Rs. 50/- as on 1st June 1991 and nil as on 1st June 1992.
Extracting the relevant portion of the above G.O., the writ Petitioner would further contend that the recommendations of the V. Pay Commission and the orders of the Government as well were not uniform in nature in respect of all the posts carrying Special Pay and they are discriminatory and violative of Article 14 of the Constitution of India, that a number of representations were made on his part to various segments of the Government specifying the anomalous conditions that had occurred in the withdrawal of his Special Pay and while the matter was under consideration of the Government, the second Respondent effected withdrawal of Special Pay and hence left with no other choice, the Petitioner has come forward to institute the above writ petition seeking redressal.
The further contention of the Petitioner in the writ petition is to the effect that the existing incumbent of the post of the Manager drawing the Special Pay are protected against abolition or reduction of Special Pay under Fundamental Rule 23(6) which is extracted hereunder.
When special pays attached to posts are abolished or reduced, the existing incumbents are allowed to draw the Special Pays at the original rate as personal pay so long as they continue to hold the posts. In such cases, the personal pay is admissible to permanent incumbents, if any, as well as to officiating incumbents.
The Petitioner would further content that Fundamental Rule 23(6) is mandatory and the Government cannot abolish or withdraw the Special Pay and cause mandatory loss to the Government servants so long as he continues in the Special Pay post; that where the Government wants to withdraw the Special Pay it should allow the existing incumbent to draw the Special Pay as Personal Pay so long as he holds the post and that in the instant case, the Government's failure to do so is violative of the provisions of Fundamental Rule 23(6) which gives protection against the mandatory loss in drawing the Special Pay. On such and other grounds, the Petitioner would pray for the relief that he has sought for in the writ petition extracted supra.
In the counter affidavit filed on behalf of the first Respondent it would be contended that the third Pay Commission (1978) has observed that in a large number of cases, the sanction of Special Pay has not been in accordance with the norms described in the Fundamental Rules and hence the Pay Commission has recommended for the abolition of the same and that while issuing orders on the recommendations of the III Pay Commission (G.O. Ms. No. 1050 Finance, Department, dated 5.10.1978), it was ordered that this recommendation of the III Pay Commission would be examined in due course and orders issued separately.
It would be further contended that due to various administrative reasons, no orders were issued abolishing the Special Pay for the categories identified by the Pay Commission for withdrawal; that the fourth Pay Commission (1984) has also endorsed the views of the Third Pay Commission; that however, no orders were issued later by the Government for obvious reasons; that in these circumstances, all the categories attached with Special Pay including the incumbents holding the post of Manager, Government Pleader's Office, High Court were allowed to draw a Special Pay upto 31.5.1990; but based on the recommendations of the V. Pay Commission and as per the orders issued by the Government in G.O. Ms. No. 666, Finance, dated 27.6.1989, this Special Pay was withdrawn in a phased manner over 3 years commencing from 1.6.1990; that the phased withdrawal of Special Pay was ordered with a view to avoid immediate burden on withdrawal in one lump sum that further as the conditions stipulated in Fundamental Rule 9 (25) was not satisfied, the Special Pay attached to the post of Manager, Office of the Government Pleader, High Court, Madras was ordered to be withdrawn and hence the orders issued in G.O. Ms. No. 666, Finance, dated 27.6.1989 are not discriminatory and also not violative of Article 14 of the Constitution of India and that those orders were uniformly adopted for all categories, attached with Special Pay and there is no justification to deviate this in respect of one individual like the Petitioner. With these averments, the counter would pray for the dismissal of the writ petition.
During arguments, the learned Counsel for both would stick to the pleadings in the writ petition and the counter as well. On the part of the learned Counsel for the Petitioner, it would be contended that since many anomalies were found in the grant of the Special Pay and taking into consideration the work load that is attached to each of such posts which carried along with them the Special Pay, the V. Pay Commission, on a rational basis, had voluntarily arrived at a conclusion to withdraw the Special Pay of the Petitioner and it is not only for the Petitioner but for the nature of the posts of the same category and that the conditions imposed under the Fundamental Rules are not satisfied relating to the dimension of work of the Petitioner serving as the Manager of the office of the Government Pleader.
In consideration of the pleadings, both in the writ petition and the counter filed on the part of the Respondent and having regard to the materials placed on record and upon hearing, the learned Counsel for both, what comes to be known is that it is not only the Petitioner but his predecessor as well had been provided with the Special Pay of Rs. 75/- in due consideration of the duties and responsibilities attached to the post of the Manager of the Office of the Government Pleader, High Court, Madras. It is patently known and also there is no denying of the fact that the Petitioner's predecessor-in-office and the Petitioner himself for nearly 10 years till the Special Pay was withdrawn under the impugned G.O. have been drawing the same. The further contentions of the Petitioner are that even though in consideration of the phenomenal growth of work the II, III and IV Pay Commissions did not come forward to enhance the Special Pay, it is atrocious on the part of the Government to have passed orders by the impugned G.O. based on the V. Pay Commission's report thus withdrawing the Special Pay attached to the post of the Manager in the office to the Government Pleader, High Court, Madras wherein the Petitioner is the incumbent at present.
The Petitioner's case is founded on a strong basis that is on Rule 23 (6) of me Fundamental Rules wherein it is spelt out in no uncertain terms that ""When Special Pay attached to posts are abolished or reduced, the existing incumbents are allowed to draw the Special Pays at the original rate as Personal Pay so long as they continue to hold the posts"". No clarification or interpretation of this clear provision of the Fundamental Rules need be necessary. On the contrary, the arguments of the other side are that the V. Pay Commission, on a rational approach and upon having a comparative study of the duties and responsibilities attached to posts similar in nature, had concluded to withdraw the Special Pay allowed to certain categories including that of the post of the Manager in the office of the Government Pleader in the High Court and based on that, the impugned G.O. had to be passed by the government and since it is on a quite justifiable reason, there is no necessity to concede the demand of the Petitioner in quashing the G.O. and hence they would pray for the dismissal of the writ petition..
The only point that is to be considered in view of the fact that the Fundamental Rule 23(6) is very clear and needs no clarification is whether this rule has to be upheld or not in view of the arguments of the other side that the G.O. had been legally issued based on the V. Pay Commission's Report. Once the specific provision of the Fundamental Rule is upheld, automatically the G.O. goes. But at the same time, if the G.O. is upheld, the Petitioner has to fail. The specific provision of the Fundamental Rules, Rule 23(6) being a statutory provision and the impugned G.O. being an executive order no need to explain that it is the statutory provision of law that always prevails over any Government Order or any other executive instructions or circular or directing much less any such report of the Pay Commission based on which the G.O. has been issued. Since the impugned G.O. is undoubtedly subservient to the statutory provision of law and when the statutory provision is very clear to the effect that the Special Pays attached to such posts cannot be disallowed since the occupants of such posts are allowed to get the Special Pay so long as they continue to hold the post, the impugned G.O. has to necessarily fail. It is necessary to clarify that the impugned G.O. will hold good for all future appointments of such posts and what the Rule 23 (b) of the Fundamental Rules emphasizes is that the G.O. is non-applicable only to the existing incumbents so long as they continue to hold the post and the Petitioner being one falling under the existing incumbent category is entitled to draw the Special Pays at the original rate as Special Pay so long as he continues to hold the posts. In these circumstances, the only irresistible conclusion that could be arrived at by this Court is to hold that it is the provision of the law embodied in Fundamental Rule 23(6) that prevails over the impugned G.O. and the contentions and prayer of the Petitioner have to be accepted in toto thus ultimately allowing the writ petition as prayed for, but however with costs.
In result, the above writ petition succeeds and the same is allowed. The impugned G.O. No. 666 Finance (Pay Cell), dated 27.6.1989, made by the first Respondent is hereby quashed so far as it is concerned with the Petitioner. Consequently the Respondents are directed to pay the Special Pay of Rs. 75/- per month or its equivalent to the Petitioner from the date on which the Special Pay was withdrawn in the case of the Petitioner till the date of his retirement. However, in the circumstances of the case, there shall be no order as to costs. Consequently W.M.P. No. 21436 of 1992 is also closed. VCS.