Madras High Court
The Principal Secretary To ... vs Vijayakumari on 29 April, 2021
W.A(MD)No.1141 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH
COURT
DATED : 29.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.A(MD)No.1141 of 2020
1.The Principal Secretary to Government,
Social Welfare Department,
Secretariat, Chennai -600 009.
2.The Commissioner of Social Welfare,
Panagal Maaligai 2nd Floor,
Saidapet,
Chennai 600 015.
3.The District Project Officer,
Child Welfare Scheme,
Collectorate Complex,
Ramanathapuram,
Ramanathapuram District.
... Appellants / Respondents
Vs.
Vijayakumari ... Respondent / Writ Petitioner
PRAYER: The Writ Appeal is filed under Clause 15 of Letters Patent, to set aside the
judgment dated 11.11.2019 in W.P(MD)No.20883 of 2019 on the file of this Court.
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1/21
W.A(MD)No.1141 of 2020
For Appellants :Mr.K.Chellapandian
Additional Advocate General,
assisted by Mr.Muthugeethaiyan
Special Government Pleader
For Respondent :Mr.S.Viwalingam
JUDGMENT
*************
[Judgment of the Court was delivered by B.PUGALENDHI, J.]
This writ appeal is filed as against the order of this Court in
W.P(MD)No.20883 of 2019, dated 11.11.2019, the respondent / writ petitioner
filed the writ petition as against the order of the second appellant Commissioner
of Social Welfare, Chennai, in Na.Ka.No.23809/ E3(2)/2019, dated 08.08.2019
and for a consequential direction to direct the first appellant to instruct the third
appellant to send the pension proposal of the respondent to the Accountant
General, Chennai by counting her services as Bala Sevika for the period from
18.01.1982 and 18.04.2012.
2. The respondent was initially appointed as Child Welfare Organiser
(Bala Sevika) in the year 1982 on a consolidated pay. The respondent was
absorbed in a regular time scale of pay in the year 2012 and posted as Rural
Welfare Officer Grade-II. Her services in the said post was regularised with
effect from 19.04.2012. She was also promoted as Rural Welfare Officer
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Grade-I in the year 2016 and retired as Supervisor Grade-I on attaining the age
of superannuation on 31.01.2018. Thus the respondent served in the department
on consolidated pay from 18.01.1984 to 18.04.2012 nearly for 30 years and
thereafter in the regular time scale of pay as Rural Welfare Officer Grade-II,
with effect from 19.04.2012 nearly for six years of service, but the respondent
denied pension to the respondent stating that she is not having the required
service in the time scale of pay.
3.The respondent by referring to the earlier orders of this Court to
count 50% of her services in the cadre of Bala Sevika from 18.01.1982 to
18.04.2012 made a representation to the authorities concerned and her
representation was rejected. As against the rejection, the above writ petition was
filed. This Court allowed the writ petition by order dated 11.11.2019 directing
the appellants to count 50% of the services rendered by the respondent in the
post of Bala Sevika for the purposes of pension along with her service in
timescale of pay and to consider the case of the respondent for pension within a
period of four weeks. Aggrieved over the same, the present writ appeal is filed
by the department.
4.Mr.M.Muthugeethaiyan, learned Special Government Pleader
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W.A(MD)No.1141 of 2020
appearing for the appellants submitted that the order dated 1.11.2019 passed in
W.P.(MD)No.20883 of 2019 is against the decision of the Hon'ble Supreme
Court and the orders of the Hon'ble Full Bench of this Court in W.A.No.158 of
2016 and a batch of cases, dated 03.12.2019. He would further submit that as
per Rule 1l (2) of the Tamil Nadu Pension Rules, 1978, half of the service paid
from contingencies shall be allowed to count towards qualifying services for
pension along with regular services provided, the services shall be in a job
involving whole time employment. The Bala Sevika post being temporary in
nature, implemented under a scheme, 50% of services rendered in that Bala
Sevika post cannot be taken into consideration for calculating for the purpose of
pension. He would further submit that the respondent, who was working as a
Child Welfare Organiser ( Anganwadi Worker) in a non provincialised service
on honororuim and she was brought into regular stream only in the year 2012.
Therefore, she is not entitled for pensionary benefits by calculating the services
rendered in a non provincialised sector on honorarium.
5.The learned Special Government Pleader further submitted that the
respondent, who was appointed as Child Welfare Organiser (Bala Sevika) on a
consolidated salary of Rs.175/- per month in the year 1992 in a non-
provincialised services under a Scheme, later brought into regular time scale of
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W.A(MD)No.1141 of 2020
pay with effect from 04.04.2012 as Rural Welfare Officer Grade II and
subsequently, promoted as Supervisor Grade I. Finally retired from service on
attaining the age of superannuation on 31.01.2018. The respondent' service was
only in the non-provincialised service on a scheme and she was brought into
regular stream only with effect from the year 2012, i.e. after the crucial date of
01.04.2003. Therefore, as per clause (v) of the decision of a Full Bench of this
Court in State of Tamil Nadu Vs R.Kaliyamoorthy, [in WA No. 158 of 2016
and batch cases dated 03.12.2019], the respondent is not eligible for
calculating the qualifying service for pension by taking to account 50% of the
service rendered in non-provincialised service.As per G.O. Ms. No. 41 Social
Welfare and Nutritious Meal Programme (NM1) Department dated 29.08.2019,
the respondent was brought under regular salary in the cadre of Rural Welfare
Officer Grade II in the year 2012, after the crucial date of 01.04.2003, she is
entitled for special pension at Rs.2000/- per mensem. The above pension was
sanctioned and she is getting the same from the month of September, 2019 i.e.
from the date of above Government order.
6.The learned Special Government Pleader has also relied upon the
following judgments in support of his contention:
1.State of Karnataka and others vs Ameerbi and others’ reported in
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W.A(MD)No.1141 of 2020
(2007) 11 SCC 681
2.Secretary to Government, School Education Department v V.
Govindasamy, reported in CDJ Law Journal 2014 SC 146.
3.State of Tamil Nadu v Seeniammal’ and others [WA (MD) No. 1157
of 2013]
4.State v M. Palanikani and others [WA (MD) No. 587 of 2014 dated
03.12.2014]
5. State of Tamil Nadu Vs R.Kaliyamoorthy, [Full Bench in WA No.
158 of 2016 and batch cases dated 03.12.2019]
7.Mr.S.Viswalingam, learned Counsel appearing for the respondent /
writ petitioner submitted that the writ petitioner was recruited as Bala Sevika
through District Employment Exchange and served on consolidated pay from
the year 1982 to 2012 nearly for 30 years. Thereafter her services were
regularised in the cadre of Rural Welfare Officer Grade -II, which is equivalent
to Junior Assistant, from the year 2012 to 2014 and subsequently, she was
promoted as Rural Welfare Officer Grade-I in the year 2014 and retired from
service on attaining the age of superannuation on 31.01.2018. Thus, according
to the learned Counsel for the respondent, the services of the respondent in the
department on consolidated pay if 30 years and in the regular time scale of pay
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is 6 years and her total services in the department is 36 years. Therefore,
considering the similar orders passed by this Court on various occasions, the
writ Court rightly allowed the writ petition and there is no reason to interfere
with the orders of the writ Court.
8.He would further submit that as per Rules 11(2) and 11(4)(iii) of the
Tamil Nadu Pension Rules, the services rendered even in non-provincialised
services, consolidated pay, honorarium, or daily wage basis, shall be followed
by absorption in the regular service before 01.04.2003, half of such services,
i.e., 50% shall be taken for calculation of pension. The cut off date 01.04.2003
mentioned in Rule 11(4) of Tamil Nadu Pension Rules, 1978 has been taken
away in the case law reported in 2014 (6) MLJ 316, which attracted the
attention of the Division Benches and the Special Leave Petition filed by the
State was also dismissed and the Hon'ble Supreme Court assigned reasons and it
is not a dismissal of Special Leave Petition simpliciter and after detailed
discussion as per the decision reported in 2018 (1) SWC 689. Therefore, the
orders of the Government which are executive nature cannot override the above
said Rule 11(2) of Tamil Nadu Pension Rules, 1978 and the orders of the
Division Bench, confirmed by the Hon'ble Supreme Court.
9.The regularisation of service is the exclusive domain of the
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W.A(MD)No.1141 of 2020
employer and as per Rule 11(2) of the Tamil Nadu Pension Rules, 1978 the
services of the employees in a non provincialised services of daily wage or
honorarium or consolidated pay are entitled to count 50% of their services
before absorption in the time scale of pay. However, the cut off date was
introduced in the Tamil Nadu Pension Rules, by way of an amendment in Rule
11(4) on 09.02.2010 is contrary to Rule 11(2) of the said Rules and it has been
discussed in detail in Chinnayan's case that the cut off date prescribed in
Rule 11(4) shall be invoked in the case of the respondent and others, who were
appointed prior to 01.04.2003. The said order was confirmed by a Division
Bench of this Court and also by the Hon'ble Supreme Court.
10.He would further submit that the Government in G.O.Ms.No.259,
Municipal Administration and Water Supply Department dated 17.06.2016 has
calculated 50% of the services of the employees, who were absorbed subsequent
to 01.04.2003 and he also referred to the following judgments in support of his
case:
1.The Government of Tamil Nadu Vs Ayyavoo and another,
[S.L.P(Civil) Nos.14838 and 14839 of 2012, dated 10.05.2012]
2.The Government of Tamil Nadu Vs Palraj [Review Petition (c) No.
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W.A(MD)No.1141 of 2020
1418 of 2013, dated 13621 of 2012]
3.The State and six others Vs. R.Kesavan [W.A.(MD)No.1026 of
2015, dated 30.09.2015]
4.M.Elumalai Vs The State and three others, [W.P.Nos.3487 to 3491
of 2016, dated 29.01.2016]
5.The State and four others Vs. S.Thillai Govidan [W.A.No.1733 of
2017, dated 13.02.2018]
11.This Court has paid its anxious consideration to the rival
submissions and perused the materials available on record.
12.The respondent / writ petitioner was appointed as Child Welfare
Officer (Bala Sevika) in the year 1982 with monthly honorarium of Rs.175 per
month. The Hon'ble Supreme Court in State of Karnataka and others Vs
Ameerbi and others reported in 2007 (11) SCC 681 has held that the post of
Anganwadi Workers are not statutory posts. They are created under a scheme
and they do not carry on any function of a State and their recruitment process is
not governed by any Statue. The Court further held that these Anganwadi
Worker posts are not created by the Government in exercise of powers under
Article 77 or 162 of the Constitution of India and the Rules framed under
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Article 309 of the Constitution of India. The Government Tamil Nadu has also
reiterated the same in letter No.151/NMP/15/2003-I that the Anganwadi
Workers are not Government employees.
13.The Anganwadi Workers were brought under time scale of pay of
Rs.40 - Rs.110 per month as per G.O.Ms.No.2 Social Welfare and Nutritious
Meal Programme Department dated 03.01.1996. The Government brought them
into the regular stream in the year 2012 and they were transferred to various
departments such as Rural Development and Panchayat Raj, School Education
Department, upon their educational qualifications on policy decision and the
respondent was posted as Rural Welfare Officer Grade-II on 18.04.2012 her
services were regularised with effect from 19.04.2012 by proceedings in
ROC.No.No.42118/No.e(3)/2013, dated 10.01.2014. Thereafter the respondent
was promoted as Supervisor Grade-I, and retired from service in the year 2018
on attaining the age of superannuation. The respondent was in regular
employment from the year 2012 to 2018, i.e., after the crucial date of
01.04.2003. Therefore, her request to count 50% of her services was rejected
by the Additional Director of Social Welfare, Chennai in ROC.No.
23809/E3(2)/2019, dated 08.08.2019 and the same was impugned in writ
petition in W.P(MD)No.20883 of 2019.
14.Rule 11(2) was amended vide G.O.Ms.No.41 Finance (Pension)
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W.A(MD)No.1141 of 2020
Department dated 09.02.2010 that for calculating half of the services paid from
contingencies shall be allowed to continue towards qualifying service for
pension along with regular services, provided the services shall be in a job
involving whole time employment and that services ought to have been brought
under regular services before 01.04.2003. A Division Bench of this Court in a
similar issue in State Vs Palanikani and others in W.A(D)No. 587 of 2014,
dated 03.12.2014 has held that by conjoint reading of i) G.O.Ms. No. 408
Finance Department dated 25.08.2009, (ii) G.O. Ms. No. 6 Social Welfare and
Nutritious Meal Programme Department dated 06.01.2010, (iii) G.O. Ms. No.
34 Social Welfare Department dated 14.03.2013 the respondents thereon are not
entitled of the benefit of counting 50% of service rendered by them under Noon
Meal Programme.
15. In the decisions referred to by the Respondent/Petitioner in P.
Chinniyan's case and in the writ appeal filed as against the same by the
Department in W.A (MD) No. 51 of 2018 and batch cases, this Court adjudged
the issue in favour of Plot Watchers in the Forest Department and directed to
count 50 % of their services before the year 2003.
16.In view of the contradictory decisions as above, the issue was
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W.A(MD)No.1141 of 2020
referred to a Full Bench. On reference, the Hon'ble Full Bench of this Court in
W.A.No. 158 of 2016 and batch cases dated 03.12.2019 has laid down the
dictum that those of the Government servants who were appointed on daily
wage basis, consolidated and in non provincialised service and who were
absorbed in regular service after 01.04.2003 will not be entitled to count half of
their past services for the purpose of determination of qualifying service past
services for the purpose of pensionary purposes. The Full Bench has also given
answer to earlier order passed in this connection, as follows;-
37. Rule 11 (4) of the Tamil Nadu Pension Rules, 1978
allows a Government employee / servant appointed in a cadre post
before 01.04.2003 as per the Rules whether in temporary or
permanent capacity to include 50% of the service rendered in (i)
provincialised services; (ii) Consolidated pay; (iii) honorarium; or
(iv) daily wage basis along with regular service subject to
conditions stipulated therein.
38. For instance if a government employee/servant was
appointed and absorbed between the cut off dates i.e. 01.01.1961
and 01.04.2003, then he/she will be entitled to include half of the
service rendered under the State Government in (i) non
provincialised services; (ii) Consolidated pay; (iii) honorarium; or
(iv) daily wage basis into his/her services for determination of
qualifying service. 39. On the other hand, if a Government
employee / servant was not absorbed between the aforesaid cut off
dates, he/she will not be entitled to include half of the service
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W.A(MD)No.1141 of 2020
rendered under the State Government in (i) non provincialised
services; (ii) Consolidated pay; (iii) honorarium; or (iv) daily
wage basis into his/her services even though such person may be
entitled to Government Pension under the Rule if he/she was
appointed in a cadre post on or before 01.04.2003 but was
absorbed after the said date.
40. For example, if a person is appointed prior to
01.04.2003 in a non provincialised service or on consolidated pay
or on honorarium or daily wage basis and later to a cadre post on
temporary basis under Rule 10 (a) (i) of The Tamil Nadu State and
Subordinate Service Rules before 01.04.2003 and such service is
regularised after 01/04/2003, such Government employee is
eligible for Government Pension under the Tamil Nadu Pension
Rules but at the same time would not be eligible to include half of
services rendered in such capacity viz., i) Non provincialised
Services ii) Consolidated pay; iii) honorarium; or iv) daily wage
basis to his regular service.
41. Thus, a government servant who may have been
appointed before the cut off date of 31.03.2003 may be entitled to
government pension if he satisfies the requirement of qualifying
service in Rule 3(o) of the Tamil Nadu Pension Rules, 1978.
However, such a person will not be entitled to add half of the past
service held in any one of the four capacity mentioned above prior
to 01.04.2003 since his regularisation is subsequent to the cut off
date. Therefore, only those who were appointed prior to
01.04.2003 whether as temporary appointment but in accordance
with Rule 10 (a) (i) alone will be entitled to get pension.
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42. The cut off date i.e. on or after 01.04.2003 in proviso to
Rule 2 of the Tamil Nadu Pension Rules, 1978 will not perse bar a
person from getting pension if such a person had joined the service
in accordance with the provisions of Tamil Nadu State and
Subordinate Service Rules i.e in the cadre whether on temporary
or permanent basis. Services rendered before the cut off date of
01.04.2003, can be added to the regular service only if the service
was regularised before the said date for determining the qualifying
service. Therefore, in our opinion, it would be appropriate to say
that Rule 11 (4) gives the meaning of qualifying service rather than
giving significance to cut off date. Therefore, it is clear that only if
the appointment is in accordance with the Rules and such
appointment is prior to 01.04.2003, 50% of the past service can be
added along with the regular service.
43. The learned counsel appearing for the writ petitioners
placed reliance on several orders passed by the Government, in
compliance with the various directions issued by this Court
directing the State or instrumentalities of the States to count half of
the service of the persons similarly placed like the writ petitioners
along with their regular service, even if the service of those
persons were regularised after 01.04.2003. It is no doubt true that
the Government passed several orders and extended the benefit of
counting half of the service rendered in casual or daily wage
employment along with the regular service in which the individual
was appointed after 01.04.2003. It is also brought to the notice of
this Court that this Court issued Mandamus at the instance of the
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W.A(MD)No.1141 of 2020
daily wage employees to consider their claim for counting half of
the service rendered on daily wage basis. In some cases, when
such directions issued by this Court have not been complied with,
contempt proceedings have been initiated. Pursuant to initiation of
contempt proceedings, the service of the individual rendered on
daily wage basis was ordered to be counted. In some cases, the
Government or instrumentality of the Government rejected such
claim and it was challenged by individual daily wage employee
purportedly by citing the cases in which half of the service was
ordered to be counted based on the contempt proceedings initiated
before this Court. This is how, multiple number of orders came to
be passed by this Court. Thus, the orders passed by this Court
cannot be construed as a binding precedent. In this context, the
learned Advocate General placed reliance on the decision of Col.
(Retd). B.J. Akkara case mentioned supra, wherein it was held that
merely because the State Government did not file appeal against
certain judgment of the High Court, it cannot operate as a bar for
the State to question similar order passed by the High Court. The
relevant portion of the decision reads as follows:
25. A similar contention was
considered by this Court in State of Maharashtra v.
Digambar [(1995) 4 SCC 683] . This Court held: (SCC p.
691, para 16) Sometimes, as it was stated on behalf of the
State, the State Government may not choose to file appeals
against certain judgments of the High Court rendered in
writ petitions when they are considered as stray cases and
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W.A(MD)No.1141 of 2020
not worthwhile invoking the discretionary jurisdiction of
this Court under Article 136 of the Constitution, for
seeking redressal therefor. At other times, it is also possible
for the State, not to file appeals before this Court in some
matters on account of improper advice or negligence or
improper conduct of officers concerned. It is further
possible, that even where SLPs are filed by the State
against judgments of the High Court, such SLPs may not be
entertained by this Court in exercise of its discretionary
jurisdiction under Article 136 of the Constitution either
because they are considered as individual cases or because
they are considered as cases not involving stakes which
may adversely affect the interest of the State. Therefore, the
circumstance of the non-filing of the appeals by the State in
some similar matters or the rejection of some SLPs in
limine by this Court in some other similar matters by itself,
in our view, cannot be held as a bar against the State in
filing an SLP or SLPs in other similar matter(s) where it is
considered on behalf of the State that non filing of such
SLP or SLPs and pursuing them is likely to seriously
jeopardise the interest of the State or public interest.
26. The said observations apply to this case. A
particular judgment of the High Court may not be
challenged by the State where the financial repercussions
are negligible or where the appeal is barred by limitation.
It may also not be challenged due to negligence or
oversight of the dealing officers or on account of wrong
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legal advice, or on account of the non comprehension of
the seriousness or magnitude of the issue involved.
However, when similar matters subsequently crop up and
the magnitude of the financial implications is realised, the
State is not prevented or barred from challenging the
subsequent decisions or resisting subsequent writ petitions,
even though judgment in a case involving similar issue was
allowed to reach finality in the case of others. Of course,
the position would be viewed differently, if petitioners
plead and prove that the State had adopted a “pick and
choose” method only to exclude petitioners on account of
mala fides or ulterior motives. Be that as it may. On the
facts and circumstances, neither the principle of res
judicata nor the principle of estoppel is attracted. The
administrative law principles of legitimate expectation or
fairness in action are also not attracted. Therefore, the fact
that in some cases the validity of the circular dated
29126;10126/1999 (corresponding to the Defence Ministry
circular dated 11126;9126/2001) has been upheld and that
decision has attained finality will not come in the way of
the State defending or enforcing its circular dated
11.12.;2001.
44. The aforesaid Judgment of the Honourable Supreme
Court would squarely apply to this case. Merely because this Court
has passed multiple number of orders in favour of some of the
similarly placed persons like the writ petitioners, it will not
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operate as resjudicata or it will preclude the State Government
from questioning those orders in a parallel or similar proceedings.
In such circumstances, we are of the view that the orders, hitherto
passed by this Court, both single Bench or the Division Bench will
not operate as a bar for maintaining these writ appeals or writ
petitions or those orders will not be considered as the one which
laid down any binding precedent to be followed in other cases. An
order, which was not passed in accordance with the statutory
provisions, need not be followed by the Court at the instance of
similarly placed persons.
45. In the light of the above, we answer the reference as
follows:
i) Those who are freshly appointed on or after
01.04.2003 are not entitled to pension in view of proviso to Rule 2
of Tamil Nadu Pension Rules, 1978 inserted by G.O.Ms.No.259
dated 06.08.2003 (ii) Those government servants/employees
appointed prior to 01.04.2003 whether on temporary or permanent
basis in terms of Rule 10 (a) (i) of Tamil Nadu State and
Subordinate Service Rules will be entitled to get pension as per the
Tamil Nadu Pension Rules, 1978.
(iii) In case, a government employee/servant had also
rendered service in non-provincialised service, or on consolidated
pay or on honorarium or daily wage basis and if such services
were regularised before 01.04.2003, half of such service rendered
shall be counted for the purpose of conferment of pensionary
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benefits.
(iv) Those government servants who were appointed in the
aforesaid four categories before the cut off date and later
appointed under Rule 10 (a) (i) of Tamil Nadu State and
Subordinate Service Rules before 01.04.2003 and absorbed into
regular service after 01.04.2003 will not be entitled to count half
of their past service for the purpose of determination of qualifying
service for pension.
(v) Those government servants who were appointed in the
aforesaid four categories before 01.04.2003 but were absorbed in
regular service after 01.04.2003 will not be entitled to count half
of their past service for the purpose of determination of qualifying
service for pension.”
17.In view of the orders of the Hon'ble Full Bench of this court,
the respondent is not entitled to have the relief of calculating 50% of her
services rendered by her in a non-provincialised service from the year 1982 for
the purpose of pension and accordingly, the writ appeal is allowed and the writ
petition is dismissed. No costs.
[N.K.K.,J.] [B.P., J.]
29.04.2021
Index : Yes / No
dsk
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W.A(MD)No.1141 of 2020
To
1.The District Educational Officer,
Tiruchirappalli District.
2.The President,
The Congregation of the Brothers of the Sacred Heart of Jesus,
Palayamkottai, Tirunelveli District.
3.The Provincial Supervisor,
Br.Edward Francis SHJ,
17, Khadi Board Colony,
Trichy – 620 021.
4.The Correspondent,
Lawrence High School,
Mullipatti, Mathur Post,
Tiruchirappalli – 622 515.
5.The Head Master,
St.Joseph Higher Secondary School,
Muthupettai, Ramanathapuram.
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W.A(MD)No.1141 of 2020
N.KIRUBAKARAN, J
AND
B.PUGALENDHI, J.
dsk
W.A(MD)No.1141 of 2020
29.04.2021
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