Pay protection for redeployed employees is valid, and delay in seeking remedy does not bar relief if based on a continuing wrong.

ORDER

Under challenge is G.O.(Ms)No.5, Highways and Minor Ports (H.M.2) Department dated 13.01.2011 in respect of petitioner's pay fixation is concerned and consequently, direct the respondents to refix the petitioner's pay by protecting the pay last drawn by the petitioner.

2.The case of the petitioner is that he was appointed as Welder Grade-I in the Central Workshop (Mechanical Wing), on 28.03.1990. He was regularized with effect from 28.03.1990. He was conferred with selection grade on 28.03.2000. The first respondent issued a Government Order for abolition of mechanical wing with effect from 31.08.2003. In view of the same, he was appointed as Record Clerk with effect from 30.09.2003 in the office of the fifth respondent. He was drawing a sum of Rs.5,000/- as basic pay in the scale of pay of Rs.4300-100-6000. Upon recommendation of the fifth respondent, the first respondent vide G.O.(Ms)No.5, dated 13.01.2011, has ordered pay protection. However, contrary to such pay protection, the petitioner's pay was erroneously fixed at Rs.4590+410 applicable to the Special Grade Record Clerk without considering the last drawn pay. The petitioner's pay scale was splitted up and fixed as Rs.4590+410. The petitioner's pay was not protected and he was made to receive lessor pay than that of his pre-revised pay. The pay fixation is contrary to the Rule 22 (2)(7) and contrary to the Tamil Nadu Revised Scales of Pay, Rules, 2009. Hence, the writ petition.

3.The learned counsel appearing for the petitioner would submit that the respondents have splitted up the petitioner's last drawn pay of Rs.5000/- into Rs.4590/- as basic pay and remaining amount of Rs.410/- as personal pay. In view of the split up of pay structure, the petitioner started drawing lower pay prior to his re-deployment, since the petitioner's case was treated as Special Case and Rules have been relaxed for pay protection, vide G.O.(Ms)No.5, dated 13.01.2011. He would submit that as per sixth pay commission benefit, the petitioner was permitted to draw increments and pay commission benefits only on the basis of the alleged basic pay of Rs.4590/- and personal pay Rs.410/- was left out. The fixation made by the respondents is contrary to the Rule 22 (2)(7) and contrary to the Tamil Nadu Revised Scales of Pay, Rules, 2009. To strengthen his contention, he has relied upon the judgment of the Hon'ble Supreme Court reported in 2018 14 SCC 435 in Eastern Coalfields Limited and Ors. Vs. Prativa Biswas and Ors to show that the pay of employees could not have been reduced as pay protection was assured to them. He would submit that in case of consequential relief like arrears for the past period cannot be rejected on the ground of delay and latches. To strengthen his contention, he relied upon the judgement of the Hon'ble Supreme Court reported in (2008) 8 SCC 648 in Union of India and Ors. Vs. Tarsem Singh to show that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy. He would submit that though the order impugned came to be passed in the year 2011, the petitioner is not in a position to challenge the said order immediately, due to his family situation and he was not well and he was suffering from Tuberculosis. He would submit that the delay in approaching this Court neither wilfull nor wanton.

4.Per contra, the learned Additional Government Pleader appearing for the respondents would submit that the petitioner was working as Welder Grade I in the workshop. At the time of re- deployment to the post equivalent to his cadre and with reference to his qualification was not available. However, considering the plight of the petitioner, the Government had taken a sympathetic view and considered him for appointment in a lower grade post of Record Clerk to his educational qualification, instead of retrenching him from service. He would submit that present writ petition came to be filed to fix his pay in the scale of p