Government Orders cannot override statutory rules; retrospective pay benefits must be fully realized as per established legal fictions.

JUDGMENT :

J. NISHA BANU, J.

1. This Writ Appeal is directed against the order of this Court dated 02.03.2023 made in W.P.(MD)No.4340 of 2020. The said Writ Petition was heard along with a batch of Writ Petitions and disposed of by a common order.

2. The Government revised the pay of its employees pursuant to the recommendations of the 7^th Pay Commission vide G.O.Ms.No.303, dated 11.10.2017. Thereafter, the Government issued G.O.Ms.No.319, dated 26.10.2017, by which, the Government while deciding to extend the benefits to the State Pubic Sector Undertakings, left it to the Board of Directors to consider the financial position and implement the revised pay notionally from 01.01.2016 and with monetary benefit from 01.10.2017 or later and the Board was also given the power to implement the pay revision/postponement of pay revision even to a future date. Thereafter, each and every transport corporation placed the matter before their respective Board of Directors and all the corporations had resolved to adopt the G.O.Ms.No.303 and G.O.Ms.No.319, subject to the conditions that may be prescribed by the Government for the monetary benefit with effect from 01.10.2017. Thereafter, the Government in G.O.Ms.No.134, dated 09.04.2018 passed orders extending the Tamil Nadu Revised Pay Rules 2017 and applicable allowances to the employees of the State Transport Undertakings with a condition that the entire financial commitment should be borne by the Corporation and they should not seek financial assistance from the Government. Thereafter, the Pension Fund Trust also issued a circular dated 09.05.2018 regarding the implementation of the revised pay scales. Regarding the modality of implementation in respect of the pensioners, an Expert Committee was also constituted. Purusant to the recommendations of the Expert Committee, the Tamil Nadu State Transport Corporation Employees Pension Fund Trust proposed to implement the 7^th Pay Commission Recommendations with prospective monetary benefits and also to continue the dearness allowance without any change. Aggrieved by the prospective effect of 7^th Pay Commission benefits, the 1^st respondent herein filed the writ petition in W.P.(MD)No.4340 of 2020. The Writ Court, by a common order dated 02.03.2023, directed that monetary benefits shall be given to the employees of the transport corporation restrospectively as per the 7^th Pay Commission. Challenging the said order, the Government has filed this appeal.

3. Today, when the Writ Appeal is taken up for hearing, the learned counsel appearing for the appellant brought to the notice of this Court that against one of the Writ Petitions ie., W.P.(MD)No.1147 of 2020 disposed of by a very same common order impugned herein, a Writ Appeal in W.A.(MD)No.1240 of 2023 was filed and a co-ordinate Division Bench of this Court by judgment dated 13.09.2023 has dismissed the appeal, confirming the impugned common order. Therefore, this Writ Appeal also shall meet the same fate.

4. The relevant portion of the judgment dated 13.09.2023 made in W.A.(MD)No.1240 of 2023 is extracted hereunder:-

“5. We have considered the rival submissions made an either side and perused the material records of the case.

5.1. The respondents 1 and 2, the retired employees, are aggrieved by two specific clauses in the impugned Government Order. Firstly, it can be seen from Rule 20-A quoted above that the Statutory Rules governing the pension, clearly envisages that the pensioners are eligible for dearness allowance at the rate that would be determined by the Government of Tamil Nadu. It goes without saying that the dearness allowance which is fixed for the Government employees from time to time is made applicable to the pensioners of the Transport Corporations. While that being the position, the impugned Government Order which is an executive instruction cannot override the Statutory Rule. The said clause in the impugned Government Order virtually has the effect of nullifying Rule 20-A of the Statut