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Judgment
N. Paul Vasanthakumar, J.—Petitioners in all the writ petitions seek direction to the first respondent to fix their basic pay on par with the
basic pay of the third respondent as on 23.11.1991, so as to remove the pay anomaly of senior drawing less pay than the junior.
The facts necessary for disposal of these writ petitions are identical, which are as follows.
(a) Petitioners were appointed as Drivers in the erstwhile Tamil Nadu State Transport Department on 19.9.1963, 11.7.1964, 26.8.1964 and 1
.7.1964 respectively and after formation of new Transport Corporation on and from 1.1.1972, petitioners were absorbed in the then Pallavan
Transport Corporation and after bifurcation, in Pattukottai Azhagiri Transport Corporation. The petitioners were promoted to the post of Driving
Instructor by order dated 7.6.1984, 14.8.1984, 7.8.1984 and 7.8.1984 respectively.
(b) The third respondent was also appointed originally as driver in the Tamil Nadu State Transport Department, but subsequent to the petitioners''
appointment. He was also absorbed in the newly formed Transport Corporations exactly in a similar manner and he was promoted as Driving
Instructor on 23.11.1991, that is, long after petitioners'' promotion as Driving Instructor. Therefore, Petitioners are senior to the third respondent
both in the lower post of Drivers and also in the promotion post of Driving Instructors and the same is not in dispute.
(c) According to the petitioners, as they having been promoted to the higher post much earlier to the third respondent, they are entitled to get
salary of the promoted post from the date of their promotion to the post of Driving Instructor, that is from 7.6.1984, 14.8.1984, 7.8.1984 and
7.8.1984 respectively. But the petitioners are paid lesser salary than the third respondent even though they were promoted earlier to the third
respondent as stated supra. The said fact came to the knowledge of the petitioners after the grant of pay revision by the Puratchi Thalaivar M.G.R.
Transport Corporation by order dated 2.4.1996, in which the pay for the four juniors were stepped up with that of the third respondent on and
from 23.11.1991, the date of promotion of the third respondent.
(d) Petitioners state that all the Transport Corporation employees in the State of Tamil Nadu are eligible to get their pay structure revised once in
three years and accordingly on 1.9.1983, 1.9.1986, 1.9.1 989, 1.9.1992 and on 1.9.1995, settlement u/s 12(3) of the Industrial Disputes Act
were arrived at between the Union of Employees and the Management. In all these agreements, there was a specific provision for protection of
pay to the senior in the event of juniors happen to draw more pay. The relevant portion in the agreement relating to settlement on 1.9.1989 reads
as follows,
... In the event of a junior employee being fixed at a higher stage of scale than a senior, the pay of the latter shall be fixed at the stage allowed to the
former.
Petitioners therefore submit that they are entitled to get their pay refixed on par with that of the third respondent, at least from 23.11 .1991.
(e) After knowing about the order dated 2.4.1996 wherein four juniors were given pay revision, petitioners individually submitted representations
on various dates to the respondents and requested to fix petitioners'' pay and remove the pay anomaly. However, the first respondent negatived
the request and stated that the petitioners have compared the persons working in different Transport Corporations and therefore the request is
rejected. Hence these writ petitions are filed with the above prayer.
Counter affidavits have been filed by the respondents wherein the respondents have stated different reason that as per the circular dated
8.12.1995, if there is any pay anomaly, the employee has to apply for removal of the anomaly within one year from the date of anomaly of pay.
The petitioners, having applied to remove the pay anomaly after one year, the same were correctly rejected as belated one.
The learned Counsel appearing for the petitioners submits that the third respondent is working in the very same Corporation wherein the
petitioners are absorbed and their request is to refix their pay, at least on par with the third respondent as on 23.11.1991 since the third
respondent, admittedly is junior to the petitioners. The learned Counsel also submits that as per the settlement u/s 12(3) of the Industrial Disputes
Act, 1947, dated 1.9.1989, the first respondent is legally bound to fix the pay of the petitioners at least on par with the pay of their Junior i.e, third
respondent, who was promoted on 23.11.1991. On the said date both the petitioners and the third respondent were working in the same
Transport Corporation. The learned Counsel further stated that the reason stated in the impugned order that the petitioners cannot compare the
salary given in the other Corporations will not hold good since all the Transport Corporations are owned and controlled by the State Government
and covered by common service rules, common standing orders, and 12(3) settlement is being arrived at once in three years in similar lines.
The learned Counsels appearing for the respondents submit that in view of the belated request made by the petitioners, their claim was rejected
even though the same is not stated in the rejection order.
I have considered the submissions made by the learned Counsel for the petitioner as well as the respondents.
The point in issue is whether the petitioners are entitled to get their salary refixed/stepped up on par with the salary of the third respondent.
The settlement u/s 12(3) of the Industrial Disputes Act, arrived at between the Employees Union and the Management clearly states that in the
event of Junior employee being fixed at a higher stage of scale than a senior, the pay of the latter shall be fixed at the stage allowed to the former.
The 12(3) settlement is binding on the management and the respondents cannot escape from implementing the said liability, stating different reasons
in different stages. It is relevant to note that the reason given for rejecting the request of the petitioners to rectify the pay anomaly is, the petitioners
are serving in different Corporations and the salary given in one Corporation cannot be compared with the salary paid in the other Corporation.
The said reasoning is not justified in view of the fact that all the Corporations are owned and controlled by the State Government and the service
conditions in one Corporation will not vary from the other Corporation. Section 12(3) settlement entered into by the Workers Union with the
Management is common in all the Corporations. Therefore there is no justification on the part of the respondents to deny the claim made by the
petitioners to step up their pay to that of their Junior, namely third respondent herein.
The reason stated in the counter affidavit is also unsustainable in view of the fact that the circular cannot override the 12(3) settlement apart from
the fact that the said reason is not stated in the rejection order. It is well settled in law that the respondents cannot improve their case by stating a
different reason in the counter affidavit than the stand taken earlier i.e, prior to filing of counter affidavit.
The Honourable Supreme Court in the decision reported in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New
Delhi and Others, in paragraph 8 held as follows,
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw
attention to the observations of Bose J. in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, :
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer
making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to
have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself."" Orders are not like old wine becoming better as they grow older.
Taking note of the inconsistent stand taken by the first respondent in these cases and in the counter affidavits and having regard to the 12(3)
settlement entered into by the Workers Union and the Management, I hold, the Petitioners are entitled to succeed.
In the result, the writ petitions are allowed. The respondents 1 and 2 in the respective writ petitions are directed to refix the salary of the
petitioners on par with that of their junior, that is, the third respondent herein and calculate the arrears of pay in terms of the revision and pay the
same to the respective petitioners within a period of four weeks from the date of receipt of copy of this order. No costs.