Madras High Court
T.Balu vs The State Of Tamil Nadu on 10 August, 2021
W.P.Nos.3733, 1404 & 3433 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08.2021
CORAM
THE HON'BLE MR. JUSTICE C.SARAVANAN
W.P.Nos.3733, 1404 & 3433 of 2020
and
W.M.P.Nos.4411, 1656, 1657, 4006,
4413 & 4414 of 2020
(Through Video Conferencing)
1.T.Balu
2.J.Sivakumar
3.K.Muralidharan
4.V.Kumar
5.M.Eswaran
6.D.Suresh Ravi
7.S.Srinivasan
8.S.Nagaraji
9.R.Kanchanamala
10.K.Subbarayan ... Petitioners in W.P.No.3733 of 2020
11.P.Murugan
12.A.Shanmuganathan
13.S.Somasundaram ... Petitioners in W.P.No.1404 of 2020
14.S.Murugan
15.A.Gengadaran
16.L.Pandurangan
17.S.Ramesh Babu
18.K.Gandhi
19.S.Anandhan
20.S.Vinayagam
21.S.Ravichandran
1/20
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W.P.Nos.3733, 1404 & 3433 of 2020
22.G.Suganthi
23.M.P.Lakshmi
24.A.Subramani
25.K.Pandiyan
26.N.Dhanasekar
27.K.Ravichandran
28.P.Mahendra Babu
29.G.R.Sridharan
30.T.Dhandayuthapani
31.G.Kalavathi
32.M.Elumalai
33.P.Panchavarnam
34.P.Thillaikarasi
35.G.V.Ramamurthy
36.A.Radhamani
37.S.Lakshmi Narasimhan
38.S.Bhaskar
39.D.Manoharan
40.S.Ramesh
41.M.Ashokan
42.M.Murugan
43.Murugesan
44.B.Soundarrajan ... Petitioners in W.P.No.3433 of 2020
Vs
1.The State of Tamil Nadu,
Rep by its Secretary to Government,
Personnel and Administrative Department,
Secretariat, Chennai – 600 009.
2.The Secretary to Government,
Finance Department,
Secretariat, Chennai – 600 009.
2/20
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W.P.Nos.3733, 1404 & 3433 of 2020
3.The Principal Commissioner & Commissioner
for Revenue Administration,
Ezhilagam, Chepauk,
Chennai – 600 005.
4.The Director of School Education,
College Road, Chennai – 600 006.
5.The Commissioner of Commercial Tax,
Chepauk, Chennai – 600 005.
6.The Commissioner,
Director of Treasuries & Accounts,
Saidapet, Chennai – 600 015. ... Respondents in all W.Ps.
Prayer in W.P.No.3733 of 2020: Writ Petition filed under Article 226 of the
Constitution of India to issue a Writ of Certiorarified Mandamus, to call for
the records of the First Respondent in Letter No.3635/P/2015-2022 dated
09.01.2018 issued to the petitioner's 1 to 10 individually and quash the same
and consequently direct the respondents to include the petitioners names in
the Old Pension Scheme under the Tamil Nadu Pension Rules 1978 and not
the new contributory pension scheme by taking into account the date of the
appointment of the petitioners as 23.11.2001 (the date of Government Order
in G.O.Ms.No.209 (P&AR) Department 23.11.2001) for the purpose of
extension of the pensionary benefits alone.
Prayer in W.P.No.1404 of 2020: Writ Petition filed under Article 226 of the
Constitution of India to issue a Writ of Certiorarified Mandamus, to call for
the records of the First Respondent in Letter No.23016/P/2015-2022 dated
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W.P.Nos.3733, 1404 & 3433 of 2020
01.01.2018 and quash the same and consequently direct the respondents to
include the petitioners names in the Old Pension Scheme under the Tamil
Nadu Pension Rules 1978 and not the new contributory pension scheme by
taking into account the date of the appointment of the petitioners as
23.11.2001 (the date of Government Order in G.O.Ms.No.209 (P&AR)
Department 23.11.2001) for the purpose of extension of the pensionary
benefits alone.
Prayer in W.P.No.3433 of 2020: Writ Petition filed under Article 226 of the
Constitution of India to issue a Writ of Mandamus, to direct the respondents
to include the petitioners names in the Old Pension Scheme under the Tamil
Nadu Pension Rules 1978 and not the new contributory pension scheme by
taking into account the date of the appointment of the petitioners as
23.11.2001 (the date of Government Order in G.O.Ms.No.209 (P&AR)
Department 23.11.2001) for the purpose of extension of the pensionary
benefits alone.
For Petitioners : M/s.Dakshayani Reddy
(in W.P.Nos.3733
& 1404 of 2020)
(in W.P.No.3433
of 2020) Mr.K.H.Ravikumar
For Respondents : Mr.L.S.M.Hasan Fizal
(in all W.Ps) Government Advocate
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W.P.Nos.3733, 1404 & 3433 of 2020
COMMON ORDER
By this common order, these three writ petitions have been disposed
of.
2.The petitioners were absorbed into the service of the respondent stay
after the cut off date 01.04.2003. The petitioners have waged a long battle
with the respondents for being absorbed into the Government Service during
the beginning of last decade.
3.Ultimately, the issue came up before the Hon'ble Supreme Court. An
interim order came to be passed wherein various Government orders had
issued by the Government fixing onerous conditions for absorbing the
petitioners came to be struck down/diluted by the Hon'ble Supreme Court in
its judgment dated 28.09.1999 in Government of Tamilnadu and another
Vs G.Mohamed Ammenudeen and others AIR 1999 SCC 3825.
4.During the pendency of the proceedings before the Hon'ble Supreme
Court, the Government issued G.O.Ms.No.144, Personnel & Administrative
Reforms (P) Department, dated 11.08.1999, noting the order of the Hon'ble
Supreme Court held as under:
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W.P.Nos.3733, 1404 & 3433 of 2020
5.Now, Shri V.Krishnamurthy, the learned
counsel for the appellants, has brought to our notice
that the appellant has issued an order G.O.Ms.No.144
dated 11.08.1999 which takes note of the various
aspects to which we have adverted to earlier for
absorption of the respondents subject to the following
conditions:
(i)Retrenched employees of the Census
Organisation in Tamilnadu with not less than six
months service were employed in priority (iii) list
under Group III for employment assistance through
Employment Exchange.
(ii)A period of three years was ordered to be
excluded in computing their age for appointment
through the Tamil Nadu Public Service Commission
and the Employment Exchanges, provided they had
rendered temporary service of at least six months in
the Census Organization of this State.
(iii)The rule of reservation was to be following
in making the appointment of retrenched census
employees.
6.However, it is brought to our notice that the
condition in clause (i) above would impose hardship
on the respondents if they are to be placed in Group
III and they had to be placed in Group IV, condition
in clause (ii) cannot be worked out at all because
even if the period of three years stated therein is
excluded the appellants will not get any benefit
because their services had been put to an end in the
year services had been put to an end in the year 1992
and over seven years have elapsed since then and,
therefore, they cannot fulfil that condition at all. In
the circumstances, we direct the State Government to
modify the scheme in respect of these two conditions.
It would be appropriate for the State Government to
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W.P.Nos.3733, 1404 & 3433 of 2020
delete these two conditions and all that may be
insisted upon is that the retrenched employees of the
Census Department should be placed in Group IV
and the condition relating to the exclusion of three
years from their age shall be deleted. Subject to this
modification, the scheme proposed by the State
Government may be worked out so as to absorb the
respondents in services of the State Government or
in any of the Local authority or Government
undertakings as may be feasible as expeditiously as
possible. This appeal stands disposed of accordingly.
7.Before parting with the case, we must put on
record our appreciation for a very reasonable stand
taken on behalf of the appellants and the learned
counsel appearing in the case.
5.The respondents thereafter issued G.O.Ms.No.30 dated 16.12.2000 in
compliance of the directions of the Hon'ble Supreme Court in the above cases
dated 16.02.2000.
6.Under these circumstances, some of the petitioners approached the
Hon'ble Supreme Court and filed a Contempt Petition in
Cont.P.(C).No.103/2000 in Civil Appeal No.810/1998. By an order dated
29.08.2001, the Hon'ble Supreme Court passed another order. The operative
portion of the said order reads as under:-
The order to the extent of clause (a) above is
not justifiable to ask the ex-employees to be
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W.P.Nos.3733, 1404 & 3433 of 2020
sponsored by Employment Exchanges and that
condition will not be in conformity with the order
made by this Court. We make it clear that the
proper course would be to consider their cases as
extrenched employees in a separate category and
work out a scheme to fit them against appropriate
posts in appropriate departments in the State
Government, Local Bodies and Public
Undertakings without insisting upon such
retrenched employees being sponsored by the
Employment Ex-changes. We also make it clear
that clause (b) will remain undisturbed as the
same as the same is in conformity with the order
made by this Court. Let these directions be
complied within three months from today.
7.The Government thereafter issued G.O.Ms.No.209, Personnel &
Administrative Reforms (P) Department, dated 23.11.2001, which reads as
under:
4.The Government examined the matter
carefully and decided to accept the directions of the
Supreme Court in its judgment dated 29.08.2001
indicated in para 3 above and to implement it by
formulating a scheme for absorption of all
Retrenched Census Employees of 1991 (except those
who were already sponsored by the Employment
Exchange, got a appointment and continues to be in
the job) without insisting upon them being sponsored
by the Employment Exchange. The Government
accordingly, pass the following orders;-
1)The Director of Census operations, Tamil
Nadu, Chennai is requested to prepare a list of all
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W.P.Nos.3733, 1404 & 3433 of 2020
retrenched employees of Census 1991 categary-wise
with details of qualification, age, date of registration
in the Employment Exchange, residential address etc
in consultation with the Director of Employment and
Training and furnish to the District Collector.
2)The Director of Employment and Training is
requested to obtain the details of the retrenched
Census Employees from various employment
exchanges and to furnish them to Director of Census
whenever required.
3)All Heads of Department, Public Sector
undertakings Autonomous bodies and Local bodies
under the Government of Tamilnadu in Chennai as
well as in Districts should contact the District
Collectors concerned while filing up all existing and
future vacancies (except those posts to be filled up by
candidates through the Tamil Nadu Public Service
Commission) and appoint them in the post suitable to
their qualifications in such vacancies, only from those
names sponsored by the District Collectors from out
of the lists of retrenched census Employees of 1991
maintained by them.
4)The District Collectors shall sponser these
retrenched Census Employees of 1991 following
strictly the seniority with reference to the date of
registration in the Employment Exchange.
5)In respect of the candidates already
sponsored for employment, got appointment and
ousted subsequently for want of vacancies may also
be sponsored now.
6)Heads of Departments, Chief Executive
Officers of all Public Sector Undertakings,
Autonemous bodies and Local bodies under the
Government of Tamilnadu shall call for the
candidates required from the District Collectors
indicating the posts, the qualifications prescribed for
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W.P.Nos.3733, 1404 & 3433 of 2020
these posts and community such as General Turn,
Backward Classes, Most Backward
Classes/Denotified communities, scheduled Castes
and scheduled Tribes.
7)Suitable candidates shall be absorbed
following the rostor on communal rotation to the
posts for which the rule of reservation is applicable.
8)The Candidates absorbed are to be appointed
as fresh employees in these
departments/organisations.
9)Rules relating to age and sponsoring through
Employment Exchange may be relaxed in favour of
these retrenched census Employees of 1991.
10)No fresh recruitment through the
Employment Exchange from open market should be
made till the lists of retrenched census Employees of
1991 maintained by the District Collectors concerned
are exhaused.
11)A monthly report in the progress of
absorption of retrenched personnel of Census 1991
shall be sent by the District Collectors to the
government in the Personnel and Administrative
Reforms(p) Department by the first week of
succeeding month.
5.This order issues with the concurrence of the
labour and Employment, Finance, Rural Development
and Municipal Administration and water supply
Departments vide their U.O.No.44206/NI/2001, dated
18.10.2001 U.O.No.3236/FS/P/2001 dated
18.10.2001, U.O.No.3/S/RD/2001, dated 19.10.2001
and U.O.No.1/S/MA&WS/2001, dated 22.10.2001
respectively.
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W.P.Nos.3733, 1404 & 3433 of 2020
8.Though the Government order was issued, there was only partial
compliance of the order. This is forced some of the petitioners to approach
the Hon'ble Supreme Court. The Chief Secretary was summoned to appear in
the Contempt Petition in Contempt Petition (C) No.433 of 2002. In the
process, the appointment were made on various dates after the cut off date
01.04.2003 by which the Tamil Nadu Pension Rules, 1978 was substituted
with a new Contributory Pension Scheme introduced. Vide G.O.Ms.No.259,
Personal and Administration department, dated 06.08.2003 the Tamil Nadu
Pension Rules, 1978 was amended. Those employees who were appointed
into Government service after 01.04.2003 became ineligible for government
pension. It is the case of the petitioner that the delay in appointment of the
petitioner by the respondent cannot be to their prejudice by deny the benefit
of pension under the Tamilnadu Pension Rules 1978, as the delay in
appointment wholly on account of the respondent.
9.On the other hand, it is the contentions of the respondent that the
appointment of the petitioner who were working in the Census Department
pursuant to various Government orders which came to be modified by the
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W.P.Nos.3733, 1404 & 3433 of 2020
Hon'ble Supreme Court was based on a sympathetic consideration as these
posts were not under the cadre of any of the Government services and
therefore the petitioners are not entitled for pension under the Tamilnadu
Pension Rules 1978. The sum and substance of the defence of the
respondents in these writ petitions is summarized as follows:
5.It is also submitted that against the said
order, one of the Retrenched Employees of the
Cencus, 1991 filed a Contempt Petition No.103 of
2000 in Civil Appeal No.810 of 1998 in the Supreme
Court of India. Wherein, the Hon'ble Supreme
Court in its order dated 29.08.2001 in the above
said Contempt Petition directed that the order of the
Government in G.O.(Ms.) No.30, Personnel and
Administrative Reforms (P) Department, dated
16.02.2000 to the effect that ''all the Retrenched
Employees of Census organization shall be placed
in priority (iii) list under Group-IV for employment
assistance through Employment Exchanges for
sponsoring against the vacancies arising in State
Government. Local Bodies and Public Sector
Undertakings is not justifiable to ask the ex-
employees to be sponsored again by Employment
Exchanges and that condition will not be in
conformity with the order made by the Court.
Hence, the Supreme Court have ordered that the
retrenched employees should be deal with in a
separate category and a scheme has to be worked
out to fit them against appropriate posts in
appropriate Departments in Government, Local
Bodies and Public Sector Undertakings without
insisting upon such retrenched employees being
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W.P.Nos.3733, 1404 & 3433 of 2020
sponsored again by the Employment Exchanges.
7.With regard to the averments made in
paragraph 11 of the Affidavit, it is submitted that in
compliance with the directions of the Hon'ble
Supreme Court of India in C.P.No.103 of 2000 in
C.A.No.810 of 1998, the Government have
formulated a separate scheme in G.O.(Ms).No.209,
Personnel and Administrative Reforms (P)
Department, dated 23.11.2001 for absorption of all
retrenched employees of census, 1991 without
insisting upon them being sponsored again by
Employment Exchanges. Further it is submitted
that, as a matter of policy decision, to effect
economy in expenditure, the Government has issued
a ban order on direct recruitment in
G.O.(Ms).No.212, Personnel and Administrative
Reforms (P) Department, dated 29.11.2001, the
scheme formulated in the G.O.(Ms).No.209,
Personnel and Administrative Reforms (P)
Department, dated 23.11.2001 was not given effect
to. In the mean time, the petitioner in the
C.P.No.103/2000 in C.A.No.810/1998 filed
Contempt before the Hon'ble Supreme Court. In
compliance with the orders of the Hon'ble Supreme
Court the said Contempt, the petitioners were
absorbed in as per G.O.(Ms).No246, Personnel and
Administrative Reforms (P) Department, dated
29.08.2003. As per the proviso to rule 2 of the
Tamil Nadu Pension Rules, 1978, the Government
Servants appointed on or after the 01.04.2003, to
services and posts in connection with the affairs to
the State which are not borne on the pensionable
establishment. Whether temporary or permanent
are not eligible for Old Pension Scheme. The
petitioner who were appointed as per above
Government Order to regular service on or after
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W.P.Nos.3733, 1404 & 3433 of 2020
01.04.2003 are not eligible for old pension scheme.
8.With regard to the averments made in
paragraph 12 of the affidavit, it is submitted that as
a matter of policy decision, to effect economy in
expenditure, the Government has issued a ban order
on direct recruitment in G.O.(Ms.) No.212,
Personnel and Administrative Reforms (P)
Department, dated 29.11.2001, the scheme
formulated in the G.O.(MS.) No.209, Personnel and
Administrative Reforms (P) Department, dated
23.11.2001 was not given effect to. Even though,
the ban orders on new recruitment was in force
from the year 2001 to 2006, the Government have
considered the request of the retrenched Census
Employees, 1991 to absorb them in the Government
Department, Public Sector Undertakings,
Autonomous Bodies and Local Bodies of the
Government of Tamil Nadu, without insisting upon
them being sponsored again by the Employment
Exchanges and they were provided employment in
the year 2004. The delay in absorbing the
petitioners in Government Service is 'neither willful
nor wanton'. The orders of the Hon'ble Supreme
Court have been complied with by the State
Government ''in letter and spirit'' by absorbing the
petitioner in regular vacancies. Since the
petitioners were appointed to regular services on or
after 01.04.2003 they are covered under
contributory Pension Scheme as per the order
issued in G.O.(Ms.)No.259, Personnel and
Administrative Reforms (P) Department, dated
06.08.2003.
9.With regard to the averments made in
paragraph 13 of the affidavit, it is submitted that in
compliance with the orders of the Hon'ble Court,
dated 03.08.2017 in W.P.No.15163 of 2015 filed by
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W.P.Nos.3733, 1404 & 3433 of 2020
Thiru.Murugan and others, their earlier
representation to with law and their request were
rejected, vide letter No.23106/P&AR(P)/2015-22,
dated 01.10.2018. Since the petitioner was
appointed on or after 01.04.2003, as per the proviso
to the rule 2 of the Tamil Nadu Pension Rules, 1978,
the Government Servants appointed on or after the
01.04.2003, to services and posts in connection with
the affairs of the State which are borne on the
pensionable establishment, whether temporary or
permanent are not eligible for Old Pension Scheme.
Further submitted that the direction of this Court on
the said W.P has been complied in letter and spirit.
10.Heard the learned counsel for the petitioners and the respondents
and perused the G.O., issued by the respondents from time to time starting
from G.O.Ms.No.341 dated 13.10.1992 and ending with G.O.Ms.No.209
dated 23.11.2001. The last mentioned G.Os was issued after the Hon'ble
Supreme Court gave a direction in AIR 1999 SCC 3825 and after that
Contempt Petitions were filed by the some of the petitioners. Tamil Nadu
Pension Rules 1978 was amended vide G.O.Ms.No.259, Personal and
Administration department, dated 06.08.2003. It introduced a Proviso to
Rule 2 which reads as under:-
''Provided that these Rules shall not apply to
Government Servants appointed on or after 1st
April, 2003 to service and post in connection with
the affairs of State which are borne on
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W.P.Nos.3733, 1404 & 3433 of 2020
pensionable establishment, whether temporary or
permanent.''
The Full Bench of this Court has dealt with the plight of Government
servants who were absorbed into service after 01.04.2003 in W.A.Nos.158 of
2016 batch etc., vide its order dated 03.12.2019 in the case of State of
Tamilnadu Vs. R.Kaliyamoorthy 2019 6 CTC 705.
11.In an identical situation, vide order dated 21.11.2017 in
W.P.No.9208 of 2012, this Court has already allowed the case. The learned
Single Judge of this court in the aforesaid order has held as under:
17.Therefore, in the above circumstances, the
petitioner is entitled to be covered under the old
pension scheme reckoning his date of appointment
from 07.01.2003, where the government had granted
him the benefit vide G.O.(2D) No.2, School
Education (M1) Department. The other orders
passed by the second and fourth respondents herein,
merely a consequential orders and therefore, in all
fairness, the date of appointment of the petitioner
ought to be taken as 07.01.2003, i.e., prior to coming
into force of the new pension scheme with effect from
01.04.2003. The rejection letter dated 10.05.2010,
rejecting the claim of the petitioner is only on the
ground that the petitioner joined the post only on
16.04.2003 and hence, within the mischief of the new
pension scheme cannot stand the test of judicial
scrutiny.
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W.P.Nos.3733, 1404 & 3433 of 2020
18.In view of the above conclusion, the said
rejection letter in Na.Ka.No.13272/R1/E1/2010,
dated 10.05.2010, cannot be sustained in law.
Therefore, the same is set aside and the writ petition
is allowed. There shall be a consequential direction
to the respondents that the petitioner ought to be
treated as an employee covered under the old
pension scheme for the purpose of pensionary
benefits.
12.Further appeal to, the Division Bench of this Court in W.A.No.2708
of 2013 was also dismissed on 11.12.2018. The case of the petitioner is
slightly different from the case of the employee who were covered by the
decision of the full bench of this court in the above case.
13.The petitioner were entitled to absorbed into the services before the
amendment to the Tamil Nadu Pension Rules, 1978 vide G.O.Ms.No.259,
Personal and Administration department, dated 06.08.2003. The petitioners
were not absorbed, despite the order of the Hon'ble Supreme Court on
28.09.1999. The order of the Hon'ble Supreme Court was later complied
with reluctance and reservation in terms of the G.O.Ms.No.209, dated
23.11.2001. It has to be therefore construed that the petitioners were entitled
to be covered under the erstwhile Tamilnadu Pension Rules 1978 as it stood
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W.P.Nos.3733, 1404 & 3433 of 2020
prior to its amendment, as the delay in the appointment of the petitioners into
the Government service was not on account of their fault, but on account of
the attitude of the respondent in not absorbing them into the Government
service in terms of the Hon'ble Supreme Court and the order passed in the
Contempt Petition of the Hon'ble Supreme Court. Therefore, these writ
petitions deserves to be allowed as prayed for.
14.Accordingly, these writ petitions are allowed. The respondents are
directed to take appropriate steps to enter into the service register of these
petitioners as the persons covered by Tamil Nadu Pension Rules, 1978 as it
stood prior to amendment vide G.O.Ms.No.259, Personal and Administrative
department, dated 06.08.2003 within a period of three months from the date
of receipt of a copy of this order. No costs. Consequently, connected
Miscellaneous Petitions are closed.
10.08.2021
Index: Yes/No
Internet:Yes/No
jas
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W.P.Nos.3733, 1404 & 3433 of 2020
To
1.The Secretary to Government,
State of Tamil Nadu,
Personnel and Administrative Department,
Secretariat, Chennai – 600 009.
2.The Secretary to Government,
Finance Department, Secretariat,
Chennai – 600 009.
3.The Principal Commissioner & Commissioner
for Revenue Administration,
Ezhilagam, Chepauk,
Chennai – 600 005.
4.The Director of School Education,
College Road, Chennai – 600 006.
5.The Commissioner of Commercial Tax,
Chepauk, Chennai – 600 005.
6.The Commissioner,
Director of Treasuries & Accounts,
Saidapet, Chennai – 600 015.
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W.P.Nos.3733, 1404 & 3433 of 2020
C.SARAVANAN,J.
jas
W.P.Nos.3733, 1404 & 3433 of 2020 and
W.M.P.Nos.4411, 1656, 1657, 4006,
4413 & 4414 of 2020
10.08.2021
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