BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date of Reservation 10.07.2024

Date of Judgment 10.09.2024

CORAM

THE HONOURABLE MR.JUSTICE S.S.SUNDAR

AND

THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Rev. Aplc(MD)No.36 of 2024

and C.M.P(MD)No.4092 of 2024

in

W.A(MD)No.1240 of 2023

and

W.A(MD)No.246 of 2024 and

CMP(MD)No.2149 of 2024

Rev. Aplc(MD)No.36 of 2024

The Administrator,

TNSTC Employees Pension Trust,

Thiruvalluvar House,

No.2, Pallavan Salai,

Chennai-600 002. : Petitioner/Appellant

-vs-

1.Pokkuvarathu Kazhaka Oyvu Petra

Aluvalar Nala Sangam,

Kovai,

(Regd. No.269/2011)

Rep. By its Authorised Person,

Mr.Alagarsamy

No.5/58, NGO Colony,

Dindigul-624 005.

1/24 https://www.mhc.tn.gov.in/judis

2.K.Singaram

3.The State of Tamil Nadu,

Rep by its Principal Secretary to Government,

Transport Department,

Secretariat, St. George Fort,

Chennai.

4.The State of Tamil Nadu,

Rep. by its Principal Secretary to Government,

Finance Department,

Secretariat, St. George Fort,

Chennai.

5.The Managing Director,

State Express Transport Corporation,

Thiruvalluvar House,

No.2, Pallavan Salai,

Chennai-600 002.

6.The Managing Director,

Tamil Nadu State Transport Corporation,

(CBEU) Limited.,

37, Mettupalayam Road,

Coimbatore-641 043. : Respondents/Respondents

PRAYER: Petition filed under Section 114 r/w Order XLVII Rule 1 & 2 of

CPC to review the order passed in W.A.(MD)No.1240 of 2023 dated

13.09.2023.

For Petitioner:Mr.S.C.Herold Singh

For Respondents:Mr.Ajmal Khan

Senior Counsel

for M/s.Ajmal Associates for R1 & R2

2/24 https://www.mhc.tn.gov.in/judis

Mr.P.S.Raman

Advocate General

assisted by Mr.S.Shaji Bino

Special Government Pleader

& Mr.C.S.K.Sathish

Standing Counsel for R3 & R4

Mr.S.C.Herold Singh for R5 & R6

W.A(MD)No.246 of 2024

1.The State of Tamil Nadu

Rep. by its Principal Secretary to Government,

Transport Department,

Secretariat,

St. George Fort, Chennai.

2.The State of Tamil Nadu rep. by its

Principal Secretary to Government,

Finance Department, Secretariat,

St. George Fort, Chennai. ... Appellants/

1

st & 2

nd Respondents

-vs-

1.Pokkuvarathu Kazhaka Oyvu Petra

Aluvalar Nala Sangam,

Kovai,

(Regd. No.269/2011)

Rep. By its Authorised Person,

Mr.Alagarsamy

No.5/58, NGO Colony,

Dindigul-624 005.

2.K.Singaram ... 1

st & 2

nd Respondents/Writ Petitioners

3/24 https://www.mhc.tn.gov.in/judis

3.The Administrator,

TNSTC Employees Pension Trust,

Thiruvalluvar House,

No.2, Pallavan Salai,

Chennai-600 002.

4.The Managing Director,

State Express Transport Corporation TN Limited,

Thiruvalluvar House,

No.2, Pallavan Salai,

Chennai-600 002.

5.The Managing Director,

Tamil Nadu State Transport Corporation,

(CBEU) Limited.,

37, Mettupalayam Road,

Coimbatore-641 043. : Respondents 3 to 5/Respondents 3 to 5

PRAYER: Appeal filed under Clause 15 of Letters Patent to allow the writ

appeal and set aside the order dated 02.03.2023 in W.P.No.1147 of 2020 insofar

as against these appellants.

For Petitioners:Mr.P.S.Raman

Advocate General

assisted by Mr.S.Shaji Bino

Special Government Pleader

& Mr.C.S.K.Sathish

Standing Counsel

For Respondents:Mr.Ajmal Khan

Senior Counsel

for M/s.Ajmal Associates for R1 & R2

Mr.S.C.Herold Singh for R3 to R5

4/24 https://www.mhc.tn.gov.in/judis

COMMON JUDGMENT

D.BHARATHA CHAKRAVARTHY, J.

The Writ Appeal arises out of the order of the learned Single Judge,

dated 02.03.2023, made in W.P(MD)No.1147 of 2020. The State of Tamil Nadu

represented by the Principal Secretary to Government, Transport Department

and the Principal Secretary to Government, Finance Department, where the

first and second respondents in the writ petition and therefore, feeling

aggrieved by the order, have filed the present Writ Appeal in W.A(MD)No.246

of 2024. The TNSTC Employees' Pension Trust Administrator, the Managing

Director of the State Express Transport Corporation and the State Transport

Corporation, Coimbatore Limited, respondents 3 to 5 had also filed Writ

Appeal (MD)No.1240 of 2023. The same was heard and by a Judgment of this

Court, dated 13.09.2023, the writ appeal was dismissed and the order of the

learned Single Judge was confirmed. As against the same, the said appellants

preferred an appeal to the Hon’ble Supreme Court of India by way of Special

Leave Petition (c) No.27785 of 2023 and by an order dated 06.02.2024, the

Hon'ble Supreme Court of India dismissed the same. After that, the self-same

5/24 https://www.mhc.tn.gov.in/judis

respondents 3 to 5 in the writ petition, have filed the above Review Application

(MD)No.36 of 2024 seeking to review the order of this Court in W.A(MD)No.

1240 of 2023, dated 13.09.2023. As such, both matters are heard together and

disposed of by this common judgment.

2. Heard Mr.P.S. Raman, learned Advocate General appearing on behalf

of the appellants and the Review Applicants and Mr.Ajmalkhan, learned Senior

Counsel appearing on behalf of the respondents 1 and 2/employees association

in the review petition.

3. Mr.P.S.Raman, the learned Advocate General would contend that

given the financial position prevalent in the Transport Corporation, the

Government of Tamil Nadu would have to bear the additional financial burden

and therefore, apart from the Administrator of the pension fund and the

Transport Corporations, the State Government is also the aggrieved party

against the order of the learned Single Judge. When the State Government has

also filed an appeal and the same was pending at the SR stage, the same should

have been brought to the notice of this Court, so that both appeals could have

been taken up together and disposed of by this Bench. In any event, he would

6/24 https://www.mhc.tn.gov.in/judis

submit that the grounds raised in the review application as well as the writ

appeal would overlap and therefore, he made common arguments in both the

matters.

4. He would submit that the factual scenario was not placed before this

Court when this Court decided the earlier writ appeal. By relying on the

various correspondences made, he would contend that it is demonstrable that

always it is the Government which had the right to fix and grant the dearness

allowance. He would place reliance on Letter No.7095/D/2008-1, dated

16.07.2008, where initially, the matter concerning fixation of dearness

allowance to the pensioners in the officer's cadre was directed by the

Government after placing the matter before the Boards of the Corporations. On

13.08.2014, by a communication of the Principal Secretary to Government to

the Administrator in Letter No.19040/E/2013-4, the Government carefully

examined the representation and ordered that the pensioners will be eligible for

nominal dearness allowance at the rates that may be determined by the

Government of Tamil Nadu. Thus when the revised pay was implemented

through the Tamil Nadu Revised Pay Rules, 2017 vide G.O.Ms.No.303, dated

11.10.2017, both the scales of pay, dearness allowance, bonus etc., which were

7/24 https://www.mhc.tn.gov.in/judis

increased/granted by the revised pay rules were not automatically applied to

the State Transport Corporations, but each of the Transport Corporations have

to adopt the same by passing board resolutions depending on their financial

conditions. When the pay scales were sought to be adopted by the State

Financial Transport Corporations, G.O.(Ms). No.134, dated 09.04.2018 was

passed whereby, the entire financial commitment due to the implementation of

revised pay and allowances are to be borne by the respective corporations from

and out of their resources without seeking any financial assistance from the

Government either directly or indirectly.

5. He would further submit that the Tamil Nadu Transport Corporation

Pension Fund Trust had written a letter dated 12.10.2018 thereby, bringing to

the notice of the Government the financial implications involved on account of

the grant of dearness allowance on the rates which is prescribed for the

Government employees in similar cadres and it has been categorically

mentioned in the said communication, there is no corpus fund with the trust

and the State Transport undertakings have expressed their inability to

contribute further. It can be seen that the shortfall which is mentioned in the

said communication was already Rs.21,183.15 crores. The implementation of

8/24 https://www.mhc.tn.gov.in/judis

the G.O., in the additional rates, would also further add to the shortfall, thus it

has financial implications. Taking this Court through G.O.Ms.Nos.323 and

327, whereby dearness allowances were sanctioned to the various categories of

employees, he would submit that the Government takes into consideration the

conditions of various types of employees and fixes the rate of dearness

allowance.

6. Adverting to Rule 20A of the Tamil Nadu State Transport Corporation

Employees' Pension Fund Trust Rules, he would submit that ultimately, the rule

only states that the dearness allowance will be paid at the rate that may be

nominated by the Government of Tamil Nadu. The present Government order

impugned in the writ petition is also an order of the Government, whereby, the

rate of dearness allowance is ordered to be frozen in the existing rate without

further increase. Effectively, by this G.O., the Government has fixed the rate of

dearness allowance. Therefore, the Government order ought not to have been

quashed as violative of the Rule. He would submit that fixation of the rate of

dearness allowance is always the prerogative of the Government and the

employees did not have any right whatsoever to claim a particular quantum of

DA.

9/24 https://www.mhc.tn.gov.in/judis

7. The learned Advocate General also placed reliance on data presented

by him to demonstrate the DA commitment for January 2024 alone. Therefore,

he would submit that the Order of the Court results in huge financial

implications and as such, this Court ought to have considered that there was no

illegality whatsoever in the impugned order. In support of his contentions, the

Judgment of the Hon'ble Supreme Court of India in Tamil Nadu Electricity

Board represented by its Chairman -vs- TNEB-Thozhilalar Aykkiya Sangam

by its General Secretary

1

, is relied upon to contend that the employees of the

Public Sector Undertakings/various boards, cannot claim that they should be

treated on par with the Government employees and unless their organizations

have funds and different cut-off date for payment of revised dearness

allowance was upheld by the Hon'ble Supreme Court of India. Further in the

same Judgement, the Hon'ble Supreme Court also held that the High Court

erred in not keeping in view the extremely difficult financial position of the

State Government and the Board. Paragraphs Nos.29, 30 and 34 of the said

Judgment were specifically relied upon.

1

2019 (15) SCC 235

10/24 https://www.mhc.tn.gov.in/judis

8. The learned Advocate General would rely upon the Judgment of the

Hon'ble Supreme Court of India in State of Madhya Pradesh -vs-

G.C.Mandawar

2

, to contend that different rates of dearness allowance can be

fixed for different sets of employees and the same would not be violative

Article 14 and in the absence of violation of Article 14, it would be within the

prerogative of the State to fix the dearness allowance and there can be no claim

to the contrary. The learned Advocate General would rely upon the Judgment

of the Hon'ble Supreme Court of India in Videsh Sanchar Nigam Limited and

another Vs. Ajit Kumar Kar and others

3

, to claim that the dearness allowance

is a matter of benevolence shown by the Government and the Government

servants do not have vested right. The grant of such allowance is not

justiciable. Reliance is made on paragraph No.51 of the said Judgment.

Regarding the merger of the order of this Court with the SLP order, the learned

Additional Advocate General would rely upon the Judgment of the Hon'ble

Supreme Court of India in Government of NCT of Delhi and another -vs- M/s

BSK Realtors LLP and another

4

(2024 INSC 455), more specifically relied

upon in Paragraphs Nos.32 to 39 to contend that when it comes to the rights of

2

1954 1 SCC 970

3

2008 11 SCC 591

4

2024 INSC 455

11/24 https://www.mhc.tn.gov.in/judis

the State, an opportunity has to be granted on merits. On the question of

merger, the learned Advocate General would rely upon the Judgment of the

Hon'ble Supreme Court of India in Kunhayammed and others. -vs- State of

Kerala and another

5

.

9. The learned Advocate General would also rely upon the Judgment of

the Hon'ble Supreme Court of India in Karnail Singh -vs- State of Haryana

and others

6

(2024 SCC Online SC 961) about the scope of review jurisdiction

to contend that the matters canvassed, would very much come within the

review jurisdiction of this Court. Therefore, the learned Advocate General

would plead that this Court should review the Judgment and also allow the

appeal filed by the Government and set aside the order passed by the learned

Single Judge.

10. Opposing the above submissions, Mr.Ajmalkhan, learned Senior

Counsel appearing on behalf of the respondents/employees association would

contend that the interpretation made by the learned Advocate General on Rule

20A is incorrect in law. The statutory rule clearly says that the pensioners of the

5

2006 6 SCC 359

6

2024 SCC Online SC 961

12/24 https://www.mhc.tn.gov.in/judis

Transport Corporations would be entitled to the dearness allowance on such

rates fixed by the Government. When the Government has fixed the rate and

the same has to be applied as per the rule, the impugned Government order

stated that in respect of the Transport Corporation Employees Pensioners, the

Government fixed rates need not be applied and it should be frozen. Therefore,

the same militates against the statutory rule and as such the portion of the

Government order has rightly been set aside by the learned Single Judge and

upheld by this Court.

11. He would further place reliance on the various daily orders of the

Hon'ble Supreme Court of India in Special Leave Petition (c) No.27785 of

2023 to contend that as a matter of fact in the appeal filed by the Administrator

and others, the matter was considered in detail by the Hon'ble Supreme Court

of India and the learned Senior Counsels on either side were heard on various

dates and the Special Leave Petition was ultimately dismissed. When the same

grounds which are raised in the Review Petition are raised in the SLP and the

same is dismissed by the Hon'ble Supreme Court of India, neither the review

nor the appeal can be entertained. When the Administrator and the Transport

Corporations and the State of Tamil Nadu were all the respondents in the writ

13/24 https://www.mhc.tn.gov.in/judis

petition, when an appeal is filed, either all of them should have joined together

in filing the appeal or should have brought the appeal together and conducted

the matter. Once the Appellate Court deals with the matter in detail and passes

a Judgment, thereafter the respondents one after the other cannot bring up

subsequent appeals and request the Court to reconsider the matter. The same

would violate the fundamental policy of finality of judicial proceedings and res

judicata.

12. He would submit that the State cannot make arguments of financial

burden in as much as the Corporations are not run on a profit basis. It is the

State that issue passes and announces several welfare schemes such as free

travel for women etc and therefore, has to supplement the financial shortage

and the argument relating to the finance, cannot come in the way of the Court

granting the orders if the claim of the employees is otherwise legal.

13. The learned Senior counsel would rely upon the Judgment of the

Hon'ble Supreme Court of India in Shiv Chander More and others -vs-

Lieutenant Governor and others

7

, to contend that all the contentions should be

7

2014 11 SCC 744

14/24 https://www.mhc.tn.gov.in/judis

deemed to have been raised to the proceedings on the principles of constructive

res judicata. Paragraphs Nos.21 to 24 of the said Judgment are specifically

relied upon. He would then rely upon the Judgment of the Hon'ble Supreme

Court of India in Mr.M.Nagabhushana Vs. State of Karnataka and others

8

, to

contend that the successive appeal and the review are nothing but re-agitating

the case already decided upto the level of the Hon'ble Supreme Court of India

and he would rely upon paragraphs Nos.12, 13, 21 to 23 of the said Judgment.

Regarding review, the learned Senior counsel would rely upon the Judgment in

Shri Ram Sahu (Dead) through legal representatives and others -vs- Vinod

Kumar Rawat and others

9

, more specifically relying upon paragraphs Nos.7 to

10 of the judgment to contend that unless an error apparent on the face of the

record is made out, the review should not be disguised to reargue the matter.

Re-argument or improvement of the stand is not the purpose of the review.

14. Relying upon the Judgment of the Hon'ble Supreme Court in

Kallakurichi Taluk Retired Officials Association, Tamil Nadu and others -vs.

State of Tamil Nadu

10

, more specifically paragraphs Nos.34 to 39 and 44 and

8

2011 3 SCC 408

9

2021 13 SCC 1

10

2013 2 SCC 772

15/24 https://www.mhc.tn.gov.in/judis

45, he would submit that when differential rates of dearness pay were

introduced concerning the pensioners, the cut-off date was held to be illegal.

The Court noted that the purpose of granting dearness allowance and dearness

pay is to mitigate the hardship placed by the employees regarding the inflation

in the market and the consumer price index. Therefore, he would submit that

the arguments that the different rates can be fixed at the Will of the

Government without any justification whatsoever cannot be countenanced. The

learned Senior Counsel would then rely upon the Judgment of the Hon'ble

Supreme Court of India in Punjab State Co-operative Agricultural

Development Bank Limited -vs- Registrar, Co-operative Societies and

others

11

, more specifically placing reliance on paragraph No.57 to contend that

the non-availability of financial resources, can never be a factor when it comes

to complying with the legal rights of the employees or the Court orders.

15. We have considered the rival submissions made on either side and

perused the material records of the case. The factual matrix is narrated above

and was narrated in detail in the order under review. It can be seen that by the

Government order impugned in the writ petition, the dearness allowance was

11

2022 4 SCC 363

16/24 https://www.mhc.tn.gov.in/judis

permitted to be continued in the present rate without any change. The said

Clause 3 of the Government order is extracted hereunder:

“3.After careful examination, the Government have decided

to accept the proposal of the Administrator, Tamil Nadu State

Transport Corporation Employees Pension Fund Trust, based on

the recommendations of the Official Committee ad ordered as

follows:-

(a) Implement the revision of pension to the pensioners who

are covered under 13

th Wage Settlement [for those who have

retired between 01.09.2016 and 31.12.2017] with notional effect

from 01.09.2016 and with monetary benefit prospectively.

(b) Implement the revision of pension as per 7

th Pay

Commission to the Pensioners [for those who have retired

between 01.01.2016 and 31.03.2018] with notional effect from

01.01.2016 and with monetary benefit prospectively.

(c) Dearness Allowance at present rates shall be continued

without any change.

(d) The entire financial commitment likely to arise on such

revision shall be incurred by the Tamil Nadu State Transport

Corporation Employees Pension Fund Trust without seeking any

financial assistance, in any form, from the Government.”

(emphasis supplied)

17/24 https://www.mhc.tn.gov.in/judis

16. It is essential to extract Rule 20A of the Tamil Nadu State Transport

Corporation Employees Pension Fund Trust Rules, which reads as hereunder:

“20.A DEARNESS ALLOWANCE TO PENSIONERS

In addition to the basic pension, the pensioners are eligible for nominal

Dearness Allowance at the rates that may be determined by the Government of

Tamil Nadu.”

17. The import of the Rule is very clear that in addition to the basic

pension, the pensioners are eligible for nominal dearness allowance at the rates

that may be determined by the Government of Tamil Nadu. The word used is

‘determined’ by the Government of Tamil Nadu.

18. As rightly contended by the learned Senior counsel, the Hon'ble

Supreme Court of India had in Kallakurichi Taluk Retired Officials

Association cited supra, had stated the purpose of granting dearness allowance

and the relevant portion in paragraph No.35 is extracted hereunder:

“...35.In the present context it needs to be kept in mind that

‘dearness allowance’ is paid to government employees keeping in mind

the All India Consumer Price Index. Inflation in the marketplace is

sought to be balanced by paying “dearness allowance” to government

18/24 https://www.mhc.tn.gov.in/judis

employees. When a State Government chooses to treat ‘dearness

allowance’ as ‘dearness pay’, the objective remains the same i.e.,

inflation in the marketplace is sought to be balanced for retired

employees by giving them the benefit of ‘dearness pay’. Since the

component of inflation similarly affects all employees and all

pensioners (irrespective of the date of their entry into service or

retirement), it is not per se possible to accept different levels of

‘dearness pay’ to remedy the malady of inflation. Just like the date of

entry into service (for serving employees) would be wholly irrelevant to

determine the ‘dearness allowance’ to be extended to serving

employees, because the same has no relevance to the object sought to

be achieved. Likewise, the date of retirement (for pensioners) would be

wholly irrelevant to determine the “dearness pay” to be extended to

retired employees. Truthfully, it may be difficult to imagine a valid

basis of classification for remedying the malaise of inflation. In the

absence of any objective, projected in this case, the question of

examining the reasonableness to the object sought to be achieved

simply does not arise. Our straying into this expressed realm of

imagination, was occasioned by the fact, that the pleadings filed on

behalf of the State Government, do not reveal any reason for the

classification which is subject-matter of challenge in the instant

appeal.”

19. Therefore, taking into consideration the inflation in the market, when

the Government determines the rates and when the statutory rules make the

19/24 https://www.mhc.tn.gov.in/judis

pensioners entitled to the Dearness Allowance at such rates as determined, the

impugned Government order, militates against the statutory rules and

accordingly, the learned Single Judge has quashed the said portion of the

Government order. There is no error in the Order of the Learned Single Judge.

We also upheld the same with detailed reasons. The SLP filed against the same

is also dismissed.

20. Even though we agree with the Advocate General that it would be

the prerogative of the Government to determine the dearness allowance taking

into account the relevant factors, once the DA is determined by the

Government of Tamil Nadu, by Rule 20A automatically such DA applies to the

pensioners of the transport corporation. The argument that ultimately the power

is only with the Government and therefore, the Government order should be

upheld, is fallacious and cannot be countenanced. By an administrative order,

the rule cannot be repealed or nullified. Therefore, even considering the

argument of the learned Advocate General once again on merits, we are unable

to agree with the same, we reiterate the view taken in our earlier judgment.

20/24 https://www.mhc.tn.gov.in/judis

21. Arguments were made concerning the financial implications.

Originally, the corporation employees were under, the provident fund scheme.

Thereafter, it is the State which thought it fit to bring them under a pension

scheme which is not on par with Government servants but with a different

scheme. When such a scheme is framed and the Rules are made which lays

down that apart from the pension which is payable at the particular rate as

specified in the scheme, they will be also entitled to the dearness allowance as

determined by the Government, then the same cannot now be taken away citing

financial crunch. It is appropriate to quote paragraph No.57 of the Judgment of

the Hon'ble Supreme Court of India in Punjab State Co-operative Agricultural

Development Bank Limited cited supra, which reads as follows:

“...57.In our view, non-availability of financial resources

would not be a defence available to the appellant Bank in taking

away the vested rights accrued to the employees that too when it

is for their socio-economic security. It is an assurance that in

their old age, their periodical payment towards pension shall

remain assured. The pension which is being paid to them is not a

bounty and it is for the appellant to divert the resources from

where the funds can be made available to fulfil the rights of the

employees in protecting the vested rights accrued in their

favour.”

21/24 https://www.mhc.tn.gov.in/judis

22. Thus looking from any angle, the grounds raised on behalf of the

State as well as the review applications are unacceptable. Apart from merits,

the attempt is only to re-argue and re-litigate the concluded matter. The self-

same arguments were also made in the earlier round, which were rejected and

the matter had attained finality up to the Hon'ble Supreme Court of India. No

new material or argument which is now made to review the judgment. The

grounds argued by the learned Advocate General would also not fall within the

contours of the grounds of review as enunciated under Order XLVII Rule 1 of

the Code of Civil Procedure.

23. Therefore, finding no merits, the Writ Appeal as well as the Review

Application stand dismissed. No costs. Consequently, connected miscellaneous

petitions are closed.

(S.S.S.R.,J.) (D.B.C.,J)

10.09.2024

NCC : Yes

Index:Yes

sji

22/24 https://www.mhc.tn.gov.in/judis

To

1.The Principal Secretary to Government,

State of Tamil Nadu,

Transport Department,

Secretariat, St. George Fort,

Chennai.

2.The Principal Secretary to Government,

State of Tamil Nadu,

Finance Department,

Secretariat, St. George Fort,

Chennai.

3.The Chief Secretary to Government,

State of Tamil Nadu,

Secretariat, Chennai-600 009.

4.The Additional Chief Secretary to Government,

State of Tamil Nadu,

Finance Department,

Secretariat, Chennai-600 009.

5.The Additional Chief Secretary to Government,

State of Tamil Nadu,

Transport Department,

Secretariat, Chennai-600 009.

23/24 https://www.mhc.tn.gov.in/judis

S.S.SUNDAR, J.

AND

D.BHARATHA CHAKRAVARTHY,J.

sji

Pre-Delivery Judgement made in

Rev. Aplc(MD)No.36 of 2024,

W.A(MD)No.246 of 2024

10.09.2024

24/24 https://www.mhc.tn.gov.in/judis