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Judgment
P.R. Shivakumar, J.—Heard both sides. Before 1976, the writ petitioner was working as Karnam. On the abolition of the post of Karnam
and creation of the post of Village Administrative Officer in its place, he was striped off the said job. Based on the representations of Ex-Village
Officers, who were in service on 14.11.1980 and were below the age of 60 years were directed to be appointed as Panchayat Assistants in the
Village Panchayats by G.O.Ms. No. 2333 Revenue dated 19.11.1990. By G.O.Ms. No. 962 Rural Development (E7) Department dated
28.11.1990, the petitioner was absorbed as Panchayat Assistant with effect from 23.1.1991 on a consolidated pay of Rs. 400/- per month. As
per the said Government Order, namely G.O.Ms. No. 962 Rural Development (E7) Department, the age of retirement of Panchayat Assistants
was fixed at 60 years. Subsequently, the government passed an order in G.O.Ms. No. 175 Rural Development Department dated 05.12.2006 re-
designating the erstwhile Panchayat Assistants as Panchayat Assistant Grade 1 and part time Pachayat Attenders as Panchayat Assistant Grade 2
with the time scales of pay of Rs. 1300-20-1500-25-2000 and Rs. 625-10-725-25-925 respectively. The said Government Order was given
retrospective effect from 01.09.2006.
While doing so, the government fixed the retirement age for Panchayat Assistants both Grade 1 and 2 at 58 years. The petitioner, who was born
on 05.06.1948 had completed the age of 58 years before the date from which G.O.Ms. No. 175 Rural Administration Department was given
effect to. The petitioner and similarly situated persons, who had completed the age of 58 years on 01.09.1998, were relieved from service on
31.12.2006 holding them to have attained the age of superannuation. Contending that while passing the Government Order fixing time scale of pay
to the Panchayat Assistants Grade and reducing the age of retirement from 60 years to 58 years, the anomaly of those who had completed the age
of 58 and had not completed the age of 60 as on the effective date, was not properly addressed and because of such anomaly the petitioner''s
service condition was adversely affected, since time scale of pay was not fixed for him and he was not paid time scale of pay till he was relieved
from service on 31.12.2006 and at the same time he had to lose the benefit of continuing in the employment till the completion of age of 60 years.
Hence the petitioner has come forward with the present writ petition to call for the records of the first respondent relating to the impugned
Government Order (Ms.) No. 175, Rural Development and Rural Administration Department dated 5.12.2006 so far as it relates to the annexure
bearing serial No.(VII) under the caption ""Administrative controls"" and the consequential order dated 31.12.2006 in Na.Ka. No. 3449/2006/E2
passed by the fourth respondent retiring the petitioner from service and quash the same.
Learned counsel for the petitioner submits that while reducing the age of superannuation on the prescription of time scale of pay for the post of
Panchayat Assistants, the Government did not take into account the interest of those who would have crossed the age of 58 years and would not
have completed the age of 60 years as on the date from which G.O.Ms. No. 175 Rural Development and Administration Department dated
05.12.2006 was brought into force and that thus the petitioner was deprived of the benefit of the above said government order dated 05.12.2006,
as no time scale of pay was fixed for him and at the same time he was denied the right of continuing in service till he attained the age of 60 years as
per the earlier government order.
The learned Additional Government Pleader admits that such an anomaly was perceived, but it was resolved by allowing such persons like
petitioner to move to the time scale of pay from 01.09.2006 and they were paid salary as per the fixation made in the time scale of pay till they
were relieved on 31.12.2006, but some how or other so far as the petitioner and similarly situated persons working in Vellore District were
concerned, the said procedure was not followed. Learned Additional Government Pleader has admitted that the petitioner was wrongly denied the
benefit of drawing the time scale of pay from 01.09.2006 till he was relieved from service as having attained the age of superannuation. Learned
Additional Government Pleader also submits that such a benefit can be conferred on the petitioner by order of this court instead of sustaining his
prayer for continuation till he would complete the age of 60 years.
G.O.Ms. No. 175 Rural Development Department dated 05.12.2006 has conferred a benefit on the Panchayat Assistants in so far as a time
scale of pay as against the consolidated pay has been fixed for the Panchayat Assistants with effect from 01.09.2006. At the same time, the age of
retirement has been reduced from 60 years to 58 years. When the government order confers a benefit and at the same time abridges a privilege
and takes away the privilege, the person seeking benefit under the Government Order should also concede the abridgment of the privilege. Hence,
those who had not completed the age of 58 years in respect of whom fitment was made as per the time scale of pay with effect from 01.09.2006,
cannot claim that their age of superannuation should be kept at 60 years. However, those who were in between the age of 58 and 60 years, as on
the date on which G.O.Ms. No. 175 was given effect to, would have crossed the age of superannuation as per the amended GO on 01.09.2006,
the effective date from which the Government Order was given effect to. In such a case, as pointed out supra, the anomaly of such persons being
sent out without even being allowed to move to the time scale of pay when they are not allowed to move to the time scale of pay, namely the
benefit conferred under G.O.Ms. No. 175, there will not be a justification in denying the right already that existed prior to the Government Order,
namely to work till the age of 60 years. If such an interpretation is made and they are allowed to work till they attains the age of 60 years on
consolidated pay, then it will result in a greater anomaly of not following the principal ""equal pay for equal work"". Such an anomlay can be
addressed by allowing them to move to the time scale of pay irrespective of the fact that they had crossed the age of 58 as on 01.09.2006 and
allowing them to draw the time scale of pay till they would be relieved holding them to have attained the age of superannuation. As pointed out by
the learned Additional Government Pleader, such a correct procedure was adopted in all districts except Vellore District. Hence this court comes
to the conclusion that the prayer made in the writ petition to quash G.O.Ms. No. 175 Rural Development and Rural Administration Department
dated 05.12.2006 and the consequential order of the 4th respondent dated 31.12.2006 in Na.Ka. No. 3449/2006/E2 retiring the petitioner from
service cannot be granted. On the other hand, by moulding the relief, the respondents have to be directed to pay salary to the petitioner by fixing
his salary in the time scale of pay applicable to Panchayat Assistants Grade 1 with effect from 01.09.1006 till 31.12.2006, when he was relieved.
The amount already paid can be deducted. The petitioner shall also be entitled to the retirement benefits, if any, applicable to the Panchayat
Assistants Grade 1, as the case may be. In the result, the writ petition is disposed of with the following directions:
The respondents shall pay the salary of the petitioner by fixing his pay in the time scale of pay applicable to Panchayat Assistants Grade 1 with
effect from 01.09.2006 till 31.12.2006, when he was relieved. The amount already paid if any, shall be deducted from the amount thus calculated
on the basis of the above said fixation. The fixation shall be made and the arrears of salary for the duty period shall be paid within six weeks from
the date of receipt of this order. The petitioner shall also be entitled to the retirement benefits if any, applicable to Panchayat Assistant Grade 1, as
the case may be. Orders regarding payment of retrial benefits shall also be passed within six weeks. No costs.