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Judgment
P.K. Misra, J.—All these writ petitions raise common questions of law relating to interpretation of G.O.Ms. No. 126 Personnel and
Administrative Reforms (U.Spl) Department dated 29.5.1998. All these writ petitions which are directed against the common order passed by the
Tribunal in several Original Applications have been heard together and shall be governed by the present common order.
Till 1961, each and every Department in the Government Secretariat had a separate unit for appointment, promotion, etc. In the year 1960, the
special rules for Madras Secretariat Service was amended, where under all the Departments in the Secretariat were made ""ONE UNIT"" for the
purpose of appointment and promotion. By G.O.Ms. No. 70, dated 17.1.1961 issued by the Public (Services) Department of the Tamil Nadu
Government, all the Departments in the Secretariat, including Law and Finance, were brought under a common unit, which was known as ""ONE
UNIT"". Appointment to all entry level posts, i.e., Junior Assistants (subsequently re-designated as Assistants), Assistants (subsequently re-
designated as Assistant Section Officers), Typists/Personal Clerks were to be made from the common list of candidates selected by the Tamil
Nadu Public Service Commission. Consequently, promotion to different higher posts in different departments were also being made from such
employees. Subsequently, by G.O.Ms. No. 1290 Public (Services) Department, dated 5.6.1970, Finance and Law Departments were excluded
from ""ONE UNIT"" system. However, the entry level posts in the cadre of Assistants, Assistant Section Officers, Typists/Personal Clerks
continued to be filled up from the common list of candidates, but so far as Finance and Law Departments were concerned, further promotions in
such departments were effected from among the employees allotted to such Departments. The allotment to Finance Department was not on the
basis of any particular criterion, but the candidates were allotted at random and may be on the basis of option of any particular candidate.
In the process, many persons, who were ranking higher in the selection, were employed in ONE UNIT department, whereas some of the
candidates ranking lower were employed under fortuitous circumstances in Finance Department. Since the scope for promotion in the Finance
Department was more compared to number of candidates available, many persons who had been employed under Finance Department got further
promotions much ahead of their peers or even seniors, who were discharging their duties in other departments coming within ONE UNIT.
Subsequently, by G.O.Ms. No. 3288 Public (Services) Department, dated 29.10.1971, the Special Rules for the Tamil Nadu Secretariat Service
were amended specifying Finance and Law Department as separate units from the level of Superintendent (Section Officers) and above. However,
no specific amendment to Rule 4 of the Special Rules for the Tamil Nadu Secretariat Service has been made to specify that only Assistants in
Finance Department are eligible for promotion as Superintendents in Finance Department. In view of the above, the Assistants (Assistant Section
Officers) in other Departments of Secretariat under ""ONE UNIT"" were also eligible along with Assistants (Assistant Section Officers) for
promotion as Superintendents (Section Officers) in the Finance Department. However, this policy had not been implemented.
2.1 While the matter stood thus, two persons belonging to ""ONE UNIT"" had filed O.A. No. 166 of 1990 before the Tamil Nadu Administrative
Tribunal claiming promotion and pay scale on par with, their juniors in the Finance Department who had been promoted to higher posts in such
Finance Department. Such Original Application was allowed by the Tribunal by order dated 16.4.1993 on the ground that there was no method to
allot any person to the Finance Department and the persons in other Departments, namely, ""ONE UNIT"" should not be deprived of the benefit of
promotion. The Tribunal had also observed that no amendment has been effected in the Special Rules for the Tamil Nadu Secretariat Service in
accordance with G.O.Ms. No. 1290 dated 5.6.1970.
2.2 Thereafter, the Government by G.O.Ms. No. 30 Personnel and Administrative Reforms (D) Department dated 28.1.1994 effected
amendment of Service Rules with retrospective effect from 5.6.1970, thus giving statutory approval to G.O.Ms. No. 1290 dated 5.6.1970. After
effecting such amendment with retrospective effect, the Government filed Review Appln. No. 4 of 1995. However, such Review Application was
dismissed by the Tribunal by order dated 20.1.1995. The Government thereafter implemented the order of the Tribunal by giving promotion to the
concerned persons with retrospective effect from the date on which their juniors had been promoted as Assistant Section Officers in the Finance
Department. Sanction was also accorded for creation of two supernumerary posts of Assistant Section Officers in the respective departments by
G.O.Ms. No. 338 Personnel and Administrative Reforms (U) Department dated 8.11.1995. In the meantime, several representations had been
made by many such similarly situated persons who were claiming promotional post/parity in scale of pay as compared to their counterparts in the
Finance Department. Such representations received the attention of the Government.
In the meantime several other Original Applications were also filed before the Tamil Nadu Administrative Tribunal.
2.3 In the above background, the Government studied the entire issue in detail and examined the various options available in finding a solution to
such longstanding problem. The Government after careful consideration decided to take a sympathetic view and a lasting and equitable solution for
such longstanding issue and issued G.O.Ms. No. 126 dated 29.5.1998. The relevant paragraphs of the said G.O., are extracted hereunder:
The Government accordingly direct that:
(i) the pay of the seniors in One Unit who have been recruited to the Tamil Nadu Secretariat Service on or before 28.1.1994, shall be stepped up
on par with their juniors in the Finance unit by upgrading he posts held by them to the scale of pay applicable to the juniors with immediate effect.
(ii) the stepping up of their pay on par with the junior''s in the Finance Unit by upgrading the posts held by them to the scale of pay applicable to
the junior ordered in sub-para (i) above is purely a person-oriented upgradation and no new posts will be created for this purpose.
(iii) the upgradation sanctioned for the seniors will lapse in the event of the retirement of the individuals concerned or their promotion to the
upgraded post in their normal turn.
(iv) the pay of the other seniors in the One Unit in the same cadre will be stepped up on par with immediate juniors in the Finance Unit, with effect
from the date of issue of this order.
(v) in respect of the Typists/Personal Clerks/Personal Assts. In One Unit who have not relinquished their right for promotion as Assistant section
Officer, and are still awaiting their turn for promotion as Assistant Section Officer, their pay shall be upgraded to Assistant Section Officer scale on
par with their immediate junior in the Finance Unit who got his promotion as Assistant Section Officer.
The benefits of upgradation of pay of the seniors on par with their juniors as per Commissions'' Seniority list ordered in sub-paras (i) - (iv) of
Para-10 above, shall also be extended to those seniors in the Finance Unit who were recruited before 28-01-94 and or drawing less pay than their
juniors in One Unit.
The upgradation ordered above is subject to the following terms and conditions
(1) The upgradation ordered will involve only stepping up of pay of the senior on par with his junior in the upgraded scale of pay.
(2) It does not entitle him to any claim for arrears of pay.
(3) On upgradation, the senior will not vacate his post and will continue to perform the duties attached to the existing post till he gets his normal
promotion in his turn to the next higher category.
(4) The seniors in one unit are eligible to the attendant benefits attached to the upgraded scale of pay that may be given to them only in the event of
their normal promotion to a post carrying such scale and they are not eligible for the same on their upgradation to these posts;
(5) The solution ordered in this Government Order, is a one time affair, and any subsequent movement upward or downward, either in the Finance
Unit or in the One Unit after the date of issue of this order, will not come under the purview of the upgradation/stepping-up of the pay now
ordered.
(6) In respect of persons falling under the following categories, the question of upgradation will be considered separately on a case-to-case basis.
(i) Suffered punishment at any stage;
(ii) Overlooked for promotion at any stage;
(iii) Who are currently undergoing punishment;
(iv) Against whom charges under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules or enquiry by Tribunal for Disciplinary
Proceedings are pending or charge sheet filed before any criminal court;
(v) Who are currently on or had at any earlier occasion gone on leave on loss of pay without Medical Certificate which will not count for
increment.
(vi) Who are now on ""other duty"" outside the regular line and whose service rights have not been terminated.
(18) These orders shall come into force with effect from the date of issue of the Orders.
2.4 As per the aforesaid G.O., the Government prepared a pay parity list. At that stage it was discovered by some of the employees who had
retired before 29.5.1998 that their names were not included in such list. Several representations and queries were made at that stage. Government
Letter No. 56425/W/98-1 P & AR Department dated 22.9.1998 and Letter No. 33163/U.Spl/2000-1 P & AR Department dated 19.7.2000
were issued, wherein it was indicated that G.O.Ms. No. 126 dated 29.5.1998 was not applicable to the persons who had retired from service
prior to 29.5.1998. Several Original Applications were filed before the Tribunal challenging rejection of such claim of the applicants. Many such
Original Applications were dismissed by common order dated 20.1.2004. The Tribunal rejected the O.As solely on the ground that the applicants
had retired long ago and they have filed their Applications between 1998 and 2003 after long lapse of time. The Tribunal also observed that when
the applicants were ignored from being promoted and those in Finance Department had got their promotions long back, such applicants should
have filed petitions then itself. It was concluded that all these applicants were not eligible for revision of pay because they have filed these petitions
after the period of limitation.
The petitioners have contended that they are not seeking for any promotion to any specific post on par with the employees in the Finance
Department. Their only contention is to the effect that G.O.Ms. No. 126 dated 29.5.1998 is also applicable to them as they were recruited to
ONE UNIT"" prior to the date contemplated, namely, 28.1.1994. It is further stated by them that even though financial benefit under such G.O., is
made applicable prospectively with effect from the date of such G.O., eligibility of a person to get such benefit has been made clear in paragraphs
10 and 11 of such G.O.
It is no doubt true that some of the applicants had prayed for quashing the G.O.Ms. No. 126 dated 29.5.1998 and to give effect to the order of
the Tribunal in O.A. No. 166 of 1990 dated 16.4.1993 to the similarly situated persons. It is contended by them that the persons who had retired
before 29.5.1998 should not be discriminated in the matter relating to availability of the benefit under such G.O.
A counter affidavit has been filed on behalf of the Government, wherein it is indicated that the present applicants/petitioners were not in service
when G.O.Ms. No. 126 dated 29.5.1998 was issued and such G.O. was only applicable to the persons continuing in service from the date of
issuance of G.O., and not to the persons retired prior to the said date. It is further indicated that the persons claiming benefits long after the cause
of action had arisen inasmuch as they could have filed applications or writ petitions claiming promotion at par with their juniors in the Finance
Department and they having not done so, it should be held that they have waived their right, if any.
Coming first to the question of laches, it is apparent that but for the issuance of G.O.Ms. No. 126 dated 29.5.1998, the petitioners claim would
have been barred by the principle of laches or even barred by limitation as contemplated u/s 21 of the Administrative. Tribunals Act. However, as
rightly pointed out by the learned Counsels appearing for the petitioners, the issuance of G.O.Ms. No. 126 dated 29.5.1998 has given fresh lease
of life to the legitimate expectation of the petitioners to be treated at par with the persons employed in the Finance Department before 28.1.1994.
While considering the question of laches/limitation, it has to be kept in view that the petitioners are not claiming, promotion from the date on
which their juniors in the Finance Department were promoted nor they are claiming any financial benefit for the past period on the basis of such
promotion prior to the issuance of G.O.Ms. No. 126 dated 29.5.1988. What they are now claiming is that in view of G.O.Ms. No. 126, the
benefit of such G.O. should also be made available to the persons who have been appointed in ""ONE UNIT"" prior to 28.1.1994 and retired
before issuance of G.O.Ms. No. 126. According to them, issuance of G.O.Ms. No. 126 has only given them the cause of action and, therefore, it
cannot be said that their applications before the Tribunal were barred by limitation. In this context, it is also contended that even assuming that
some of the Applications were barred by limitation, since the Tribunal has ample power to condone the delay, such delay should, have been
condoned, as the retired persons are claiming certain financial benefits at par with their more fortunate colleagues, who retired only after
29.5.1998.
In our considered opinion, the observation made by the Tribunal that the Original Applications were barred by limitation or hit by the principle of
laches and acquiescence cannot be upheld in the peculiar facts and circumstances of the present cases. At the cost of repetition, it can be said that
issuance of G.O.Ms. No. 126 only has given a right to the petitioners to claim benefit under such G.O. at par with the employees who have availed
the benefit under such G.O.
G.O.Ms. No. 126 dated 29.5.1998 has made it clear that no financial benefit prior to 29.5.1998 can be claimed. The petitioners are not
claiming any financial benefit or promotional benefit as such before the said date. All they are claiming is that their pay scale should have been
refixed at par with their juniors in the Finance Department who because of their fortuitous circumstances had got promotion in the Finance
Department so that the pension can be calculated on the basis of such revised pay.
Learned Counsel appearing for the State Government has relied upon an unreported order of the Division Bench of this Court wherein some of
the applicants, whose Original Applications had been rejected by the Tribunal on the ground of delay/laches, had filed Writ Petitions and such Writ
Petitions were dismissed at the stage of admission on the ground that the claim of the petitioners were hit by the principle of delay/laches. Apart
from the fact that the present batch of writ petitions have been filed and were admitted even before the aforesaid order was passed dismissing a
few other writ petitions, it is apparent that such order had been passed at the stage of admission. In the peculiar facts and circumstances of the
case, the Bench was not inclined to admit the matter as it was of the view that principle of delay/laches was applicable. The fact that cause of
action for the petitioners herein has arisen only because of issuance of G.O.Ms. No. 126 dated 29.5.1998 was neither raised in the manner it has
been now raised nor it was considered. Since the present petitioners were not parties to such proceedings, obviously such order cannot operate as
res judicata so far as the present petitioners are concerned. The said order passed at the stage of admission also would not operate as a binding
precedent as the question now raised has not been considered nor answered.
For the reasons indicated earlier, in our considered opinion/ the observation of the Tribunal regarding delay/laches cannot be sustained.
Once this conclusion is reached, since the Tribunal has hot disposed of the Original Applications on merit, in normal course, the matters would
have been remanded to the Tribunal for fresh consideration. However, since the Tribunal has been abolished in the meantime, the question of
remanding the matter to the Tribunal does not arise and the claim of the petitioners is now required to be considered by this Court on merit.
Learned Counsels appearing for the petitioners have laid emphasis on paragraphs 11 and 12 of G.O.Ms. No. 126 dated 29.5.1998. They
have contended that from a plain reading of such clauses it is apparent that pay of seniors in ONE UNIT, who have been recruited on or before
28.1.1994, is required to be stepped up on par with their juniors in the Finance Unit by upgrading the posts held by them to the scale of pay
applicable to the scale of pay enjoyed by the juniors in the Finance Department. Under paragraph 11, the benefit of upgradation of pay of the
seniors on par with their juniors as per Commissions'' Seniority list is also extended to those seniors in the Finance Unit who were recruited before
28.1.1994 and drawing less pay than the juniors in ONE UNIT.
There is no specific clause in G.O.Ms. No. 126 excluding the applicability of this G.O. to the persons who had retired before 29.5.1998. The
G.O. itself recites that the Government wanted to provide a solution to the longstanding problem and had decided to take a sympathetic view to
effect lasting and equitable solution to the longstanding issue so as to redress the grievances of the seniors in the ONE UNIT by upgrading the pay
of the seniors in ONE UNIT on par with their immediate juniors in the Finance Unit.
Keeping in view the explicit intention of the Government, it is apparent that the G.O had been issued as a beneficial measure and the provisions
in such G.O. are to be liberally construed so as to benefit the employees for whose benefit the G.O. was avowedly issued. It is not disputed that
the petitioners were in service on and before 28.1.1994 and therefore, they fall within the scope and ambit of the impugned G.O. Once they are
covered under the said G.O., the benefit of the said G.O. will flow automatically.
It is no doubt true that some of the provisions and the formats if construed in isolation the same may give the impression that G.O. is only made
applicable to the employees still serving on the date of issuance of such G.O. However, keeping in view the object of the G.O., such restricted
construction should be avoided. In this regard, it will be relevant to refer to the observations, of the Apex Court in the following decisions:
In Regional Provident Fund Commissioner Vs. Shibu Metal Works, , it was observed:
...The object which the Act purports to achieve is to require that appropriate provision should be made for the employees employed in the
establishments to which the Act applies; and that means that in construing the material provisions of such an Act, if two views are reasonably
possible, the Courts should prefer the view which helps the achievement of the object. If the words used in the entry are capable of a narrow or
broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the
object, then, it would be necessary to prefer the said construction. This rule postulates that there is a competition between the two constructions,
each one of which is reasonably possible. This rule does not justify the straining of the words or putting an unnatural or unreasonable meaning on
them just for the purpose of introducing a broader construction.
(Emphasis added therein)
In Union of India (UOI) and Another Vs. Hansoli Devi and Others, , it was observed:
...It is no doubt true that if on going through the plain meaning of the language of Statutes, it leads to anomalies, injustices and absurdities, then
the Court may look into the purpose for which the Statute has been brought and would try to give a meaning, which would adhere to the purpose
of the Statute....
(Emphasis added therein)
In our considered opinion, such a restrictive meaning should not be given as it is likely to defeat the express intention of the Government, which
purported to take a sympathetic view. Moreover, such an interpretation may give rise to hostile and unwarranted discrimination between those
persons who had accidentally retired before 29.5.1998 and those who were in service on or after 29.5.1998. It is no doubt true that G.O.Ms. No.
126 has expressly made it clear that the benefit can be availed prospectively and no past benefit would be made available. However, according to
us the eligibility of a person to get the benefit is laid down in paragraphs 10 and 11 of the G.O and such persons are to get the benefit
prospectively with effect from 29.5.1998. If they had retired before 29.5.1998, their pay has to be notionally calculated on the basis of the G.O
and they would be entitled to enhanced pensionary benefits only on refixation of pay on par with their juniors in the Finance Department and they
would be entitled to such financial benefit in the shape of enhanced pension prospectively with effect from 29.5.1998. If it is narrowly construed
and held that the persons those who were in service on 29.5.1998 would alone be eligible to the benefit of the G.O., the question of violation of
right of equality as contemplated in Articles 14 and 16 of the Constitution would loom large.
Law is well settled that when two interpretations are possible, the interpretation which brings the provision in consonance with the Constitution
including the concept of equality should be preferred. In our opinion, the G.O.Ms. No. 126 must be read in consonance with the provisions
contained in Article 14. We do not find any discernible difference between the two groups of employees, one which had been employed before
28.1.1994 but had retired before 29.5.1998 and the other which had been employed before 28.1.1994, but retired after 29.5.1998. Obviously,
this anomaly could not have been the intent while passing the G.O.
In the absence of any express provision in G.O.Ms. No. 126 to make it applicable to only those who were in service on 29.5.1998 or
thereafter, we feel it appropriate to construe that the G.O. is applicable to all who were employed in ONE UNIT of the Secretariat before
28.1.1994 as contemplated in paragraph 10 or who were employed in the Finance Department as contemplated in paragraph 11 of the G.O.
For the aforesaid reasons, the common judgment delivered by the Tamil Nadu Administrative Tribunal is liable to be quashed. It is declared
that the pay of each of the petitioner shall be notionally fixed at par with the pay of the immediate junior of such petitioner selected under the very
same selection process and employed in the Finance Department. On the basis of such notional fixation of pay at par with the junior as
contemplated in G.O.Ms. No. 126 dated 29.5.1998, the pension payable to each of the petitioner shall be revised and paid to such petitioner with
effect from 29.5.1998. It is made clear that no amount is payable to any of the petitioner either towards salary or pension for the period anterior to
the order shall be complied with by 4 month from date of (sic) of the date 29.5.1998. The writ petitions are accordingly allowed, subject to the
aforesaid directions. No costs.