(Judgment of the Court was delivered by PRABHA SRIDEVAN, J) These two writ appellants were working as Peons (non-teaching staff) in the third respondent-College. According to the memorandum issued by the College on 7.10.1980, Mr. A.G. Mohideen (W.A. No.205 of 2008) was appointed on 1.8.1967 and confirmed on 1.8.1969 and Mr. Mohamed Khasim (W.A. No.204 of 2008) was appointed on 30.7.1970 and confirmed on 30.7.1972. When a demand was made by the teaching and non-teaching staff for various categories of reliefs, it appears to have been agreed that full retirement benefits would be given to the employees.
2. Mr. Mohamed Khasim moved a writ petition in W.P. No.16664 of 1994 seeking certain reliefs. This Court disposed of the said writ petition, directing the Education Department to pass final orders on merits. Since no orders were apparently passed, on 24.3.1998, a legal notice was sent to the Secretary to Government, Higher Education (D1) Department, stating that if the direction of this Court has not been complied with, contempt petition will be moved.
3. On 3.7.1998, an order in G.O.2D.No.75 Higher Education (D1) Department came to be passed, where the Government, after having carefully examined the proposal of the Director of Collegiate Education, refused to approve the said proposal for taking into account the services rendered by the non teaching staff of the third respondent-College prior to 1.4.1979 for the purpose of sanctioning selection grade/special grade.
4. Thereafter, the Secretary to the Government addressed a letter dated 7.10.2002 to the Director of Collegiate Education, referring to the Government Order mentioned above and informed that there is no justification to accept its proposal to count the services rendered by the non-teaching staff of third respondent-College prior to 1.4.1979 for the purpose of selection grade/special grade and pensionary benefits. The Director of Collegiate Education annexed the letter mentioned earlier and informed that the demand of the non-teaching staff was rejected.
5. Three years later, W.P. Nos.31166 of 2005 and 2328 of 2006 were filed by the appellants herein , who had by then retired, for quashing G.O.2D.No.75 Higher Education (D1) Department dated 3.7.1998 and to issue a direction to the respondents to take into account the services rendered from the date of appointment and grant consequential benefits by refixing the pay and giving pensionary benefits accordingly. By a common order dated 23.8.2007, this Court rejected the writ petitions on the ground of laches and also because this Court found that there was no discrimination or disparity to quash the aforesaid Government Order. Therefore, the present writ appeals have been filed.
6. Learned counsel appearing for the appellants submitted that as early as 1979, the claim of the teachers and non-teaching staff that full retirement benefits should be given to them, was accepted and thereafter, there can be no discrimination between the teaching and non-teaching staff. The memorandum dated 7.10.1980 would also show the date on which the non-teaching staff have been confirmed. Learned counsel submitted that without prejudice to the case of the appellants, they are entitled to sanction of selection grade/special grade. It is submitted that the G.O. restricted its rejection of non approval only for sanction of special grade/selection grade and there was no mention of pensionary benefits and it is unfair to extend the non approval to the pensionary benefits which does not find a mention in the G.O.
7. Learned counsel also submitted that the other employees similarly placed as that of the appellants have been granted selection grade and it is only Thiru Mohammed Kasim, who has not been granted selection grade and there is no reason as to why he is discriminated. Learned counsel also submitted that de hors the receipt of grant, the Government is bound to extend the pensionary benefits right from the date of appointment. Learned counsel relied on the decisions reported in the case of U.O.I. v. TARSEM SINGHY ((2008) 7 MLJ 1245) and RASTHAN WELFARE SOCIETY v. STATE OF RAJASTHAN ((2005) 5 SUPREME COURT CASES 275) in support of his submissions.
8. Learned Special Government Pleader submitted that as far as respondents 1 and 2 are concerned, the Government's grant was sanctioned only from 1.4.1979 and therefore, benefits will also be extended to teaching or non-teaching staff only from that date and selection grade cannot be ordered to non-teaching staff counting the period prior to 1.4.1979. A tabular column is furnished in the counter, which shows that non-teaching staff have been awarded selection grade taking into account the services rendered by them from 1.4.1979 only.
9. Learned counsel appearing for the third respondent has adopted the submissions made by the learned Special Government Pleader.
10. In the decision reported in (2008) 7 MLJ 1245 (SC) cited supra, the Supreme Court considered the case of Army man, who was invalidated from the services of Army on 13.11.1983. He approached the Court for sanction of disability pension. Learned Single Judge allowed the writ petition and directed the appellants to grant him disability pension, which was restricted to 38 months prior to the filing of the writ petition. The Division Bench however held that the writ petitioner was entitled to disability pension from the date it fell due and it should not be restricted for a period of three years.
11. The Union of India went on appeal. The Supreme Court held that a belated service related claim may be rejected on the ground of laches, where an order may have the effect of reopening the issue which will affect the settled rights of the third party and if the issue relates to payment or re-fixation of pay or pension, the relief may be given in spite of delay since such an order will not affect the rights of third party. However, the Supreme Court allowed the appeal filed by the Union of India, restricting the relief only to a period of three years prior to the filing of the writ petition. In paragraph 5 of the said decision, the Supreme Court has held as follows:-
"5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. 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, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
12. This decision cannot be understood to mean that all cases of belated claims shall be accepted. The Supreme Court has very carefully held that the relief may be granted in spite of delay and that the relief is also restricted to three years prior to the date of filing of the writ petition, which would be the normal period of limitation for a civil litigation.
13. In the decision reported in (2005)5 SCC 275 cited supra, the question was whether the amount of gratuity payable to the employees of aided educational institution has to be taken into consideration or not for determining the amount of Grant-in-Aid. The Supreme Court held that the gratuity cannot be included in the approved expenditure as under Rule 9, the State Government can sanction the grants under four heads provided therein and gratuity does not fall under any of them. Before disposing of the case, the Supreme Court left it open to the State Government to consider sympathetically the question of the gratuity payable to the employees being taken into consideration for the purpose of computing the amount of grant-in-aid.
14. This decision does not help the petitioner. It is to the effect that the Government cannot be compelled to sanction any grant-in-aid amounts that an employee may be otherwise entitled to. In the case of gratuity, it is something that the employee is something entitled to whereas in the present case, the question whether the appellants herein are entitled to have the period of services prior to 1.4.1979 does not appear to have been decided except to the extent mentioned in G.O.2D.No.75 Higher Education (D1) Department dated 3.7.1998 and we find that the College had not been sanctioned any grant from the Government prior to 1.4.1979 and the College was also informed that non-teaching staff, who were brought into time scale, would be entitled to service benefits only from the time when they were brought into time scale. The said G.O. reads as under:-
" The Regional Joint Director of Collegiate Education has sent proposal for the grant of selection grade/Special grade to the non teaching staff in the Justice Basheer Ahmed Syed Women's College(J.B.A.S. Women's College) counting the services rendered by them prior to 1.04.79 as was done in the case of teaching staff. It has been reported that Justice Basheer Ahmed Syed Women's College has been getting teaching grant and pre professional course grant every year from 1956 to 1973-74 and for the period from 1974-75 to 1978-79, the college has not been sanctioned any grant by the Government from 1.04.79 onwards the college has been getting grant from the Government. In the proceedings of the Director of Collegiate Education, L.Dis.No.110803/A4/85, dt.11.12.85, the Secretary, Justice Basheer Ahemed Syed Women's College has been informed that the non teaching staff in the college were brought on the time scale with the benefit of annual grants and dearness allowance subsequent to 1969 and hence the request of the Management to take into consideration the continuous service rendered by the non-teaching staff prior to 1969 for purpose of calculation of leave and promotion to the selection grade is not feasible of compliance and that only the period of service in the time scale will be taken into account for service benefits. The Director of collegiate Education in his proceedings No.550055/A4/89 dt.11.4.90 has informed the Regional Joint Director of Collegiate Education, Chennai that the services rendered by the non teaching staff in Justice Basheer Ahmed Syed Women's College from 1.4.79(date from which the college has been getting grant from the Government, should be taken into consideration for processing the proposals for the grant of selection grade.
2.The Director of Collegiate Education has stated that the Justice Basheer Ahmed Syed Women's College, Chennai were sanctioned upgradation and University Grant Commission's scale of pay taking into account the services rendered by them prior to 1.4.79. He has therefore recommended that the services rendered by the non teaching staff in Justice Basheer Ahmed Syed Women's College prior to 1.4.79 can be taken into account for the purpose of sanction of selection grant/special grant. The Director of Collegiate Education has requested the Government to issue necessary orders in the matter.
3. In the meantime Thiru Mohamed Kasim, Office Assistant in Justice Basheer Ahmed Syed Women's College, Chennai (since retired) had filed W.P.Mo.16664/94 in the High Court, Chennai seeking direction to the respondents to extend the benefit of selection grade to the petitions with full monetary benefits including arrears, Hon'ble Court, Chennai in their orders in W.P. No.16664/94 dt.13.11.1997 has observed that perusal of the counter affidavit reveals that proposals have been sent in favour of the petitioner and the competent authority has to pass final orders agreeing or disagreeing with the proposals. Hon'ble High Court, Chennai has directed that final orders on the proposals sent by the authorities should be passed within 90 days from the date of receipt of the order copy.
The Government have carefully examined the proposal of the Director of Collegiate Education mentioned in para 2 above, Justice Basheer Ahmed Syed Women's College has been sanctioned grant by the Government only with effiect from 1.4.79. Further the concession/benefit recommended by the Director of Collegiate Education for the non teaching staff in Justice Basheer Ahmed Syed Women's College, Chennai has not been extended to the non teaching staff in other aided colleges. Under the circumstances, the Government do not approve the proposal of Director of Collegiate Education for taking into account the services rendered by the non teaching staff in justice Basheer Ahmed Syed Women's College, Chennai prior to 1.4.79 for the purpose of sanction of selection grade/special grade.
5. This orders issue with the concurrence of finance Department vide its U.O.No.38921/ Education II/98-1 dt. 10.6.98."
15. Therefore, as early as 1985, a decision had been taken that the movement to time scale is the date i.e. relevant for calculation of service benefits. Therefore, learned counsel appearing for the appellant may not be quite right in submitting that though G.O.2D.No.75 Higher Education (D1) Department dated 3.7.1998 restricts itself the question of sanction to special grade/selection grade, the letter dated 7.10.2002 unjustifiably includes the question of pensionary benefits also.
16. As regards the sanction of selection grade/special grade, it appears to be a decision uniformly applied to all aided colleges that selection grade/special grade for non-teaching staff is given only from 1.4.1979. The appellants are not able to bring before us any instance of other aided colleges to whom the non-teaching staff such benefit has been extended. Therefore, we confirm the findings of the learned Single Judge with regard to the selection grade/special grade.
17. As regards the pension, the letter of the Director of Collegiate Education indicates that the period of service in the time scale will be taken into account for service benefits. In one of the writ petitions, it is stated that he was brought into time scale on 1.1.1978. In these circumstances, we direct the writ appellants to make a claim for sanction of pensionary benefits from the date on which they moved to time scale. The respondents shall also sanction special grade or selection grade uniformly to all the non-teaching staff and no discrimination can be made in that regard.
18. In the counter filed by the Government, Mohamed Kasim's name does not find a mention, whereas A.G. Mohideen's name is found. There is no reason apparent for exclusion of his name. It may be an inadvertent error. The respondents may consider the same in this regard and if Mohamed Kasim has not been granted selection grade, he can be granted the selection grade/special grade on par with other non-teaching staff, if no other factor disentitles him. Such order shall be passed within three months. It is open to the writ appellants to make a representation to the College and it is for the College to decide the same.
19. With the above observations, the writ appeals are disposed of. No costs.
(P.S.D.J) (C.T.S.J) 22.07.2009 Index:- Yes/No.
Internet:- Yes.
ssa.
To:
1. The Secretary to Government, The State of Tamil Nadu, Education Department, Fort St. George, Chennai 600 009.
2. The Director of Collegiate Education, College Road, Chennai 600 006.
3. The Correspondent, Justice Basheer Ahamed Syed Women's College, College Avenue, 311, Anna Salai, Teynampet, Chennai 600 018.
PRABHA SRIDEVAN, J. & C.T. SELVAM, J ssa.
of 2008 22.07.2009