Madras High Court
The State Of Tamil Nadu vs Tmt.T.Sivasundari on 18 August, 2021
W.A.No.1374 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2021
CORAM
The Hon'ble Mrs.Justice Pushpa Sathyanarayana
and
The Hon'ble Mr.Justice Krishnan Ramasamy
W.A. No.1374 of 2021
1. The State of Tamil Nadu,
rep. by its Secretary to Government,
School Education Department,
Secretariate, Chennai -09.
2. The Director of Government Examinations,
The Directorate of Government Examinations,
College Road, Chennai -600 006.
3. The Regional Deputy Director of
Government Examinations,
College Road, Chennai -600 006.
... Appellants
vs
Tmt.T.Sivasundari ...Respondent
Prayer:-
Writ Appeal filed under clause 15 of the Letters Patent against the
order dated 11.04.2018 made in W.P. No.8618 of 2018.
For Appellants : Mr.R.Neelakandan
State Government Counsel
For Respondent : Mr.G.Elanchezhiyan
****
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Page No.1 of 9
W.A.No.1374 of 2021
JUDGMENT
(Delivered by Krishnan Ramasamy, J.,)
This is an intra Court Appeal, filed against the order passed in
the Writ Petition No.8618 of 2018, dated 11.04.2018.
2. The appellants 1 to 3 herein are the respondents 1 to 3
respectively in the aforesaid Writ Petition and the respondent herein is the
writ petitioner.
3. The facts of the case, which led to the filing of this Writ
Appeal are as follows :-
i) The writ petitioner was initially appointed as Section Writer on
daily wage basis on 16.08.1989. Thereafter, as per the order issued by the
Government, vide G.O.(Ms.)No.203, School Education Department, dated
19.10.2006, she was temporarily appointed as Record Clerk in the time
scale of pay of Rs.2610-60-3150-65-3540, and her service was regularized
w.e.f. 20.10.2006. Subsequently, her probation was declared satisfactory on
02.02.2009 by the third respondent w.e.f. 14.12.2008 and she retired from
service on her attaining the age of superannuation on 31.12.2011. Since 22
years service putforth by the writ petitioner was not taken into
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W.A.No.1374 of 2021
consideration for grant of pension, she filed the Writ Petition, seeking for a
mandamus to the respondents to count 50% of the service rendered by her
from 16.08.1989 to 19.10.2006 along with regular service from 20.10.2006
for the purpose of granting pension, and consequently to grant pension with
all benefits.
ii) The learned Single Judge, after hearing both sides, analyzing
the amended Rule 11 of the Tamil Nadu Pension Rules, in respect of
qualifying service and considering the judgment rendered by the Division
Bench of this Court, in Union of India Vs. K.Punniyakotti, reported in
(2014) 2 C.T.C. 777, and the judgment rendered in W.A.(MD) No.51 of
2018, in the case of the Government of India and three others Vs.
K.Sakthivel, dated 27.03.2018, by order, dated 11.04.2018, disposed of
the Writ Petition with a direction to the respondents to grant the relief, by
counting 50% of the service rendered by the writ petitioner on temporary
basis and to pass orders
iii) Challenging the said order, the State Government has preferred
the present Appeal.
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W.A.No.1374 of 2021
4. Mr.R.Neelakandan, learned State Government Counsel,
appearing on behalf of the appellants submitted that, a similar issue came
for consideration before the Hon'ble Full Bench of this Court, in a batch of
case, being W.A.Nos.158, 314, etc., of 2019 (Government of Tamil Nadu
Vs. R.Kaliyamoorthy) reported in (2019) 6 C.T.C. 705 (FB) wherein, it is
held that as far as appointments made on or before 01.04.2003 is concerned,
50% of the service rendered by the employees on temporary basis should be
taken into consideration and insofar as appointments made on and after
01.04.2003 is concerned, since such appointees are governed by new
contributory pension scheme, 50% of the service rendered by them on
temporary basis need not be taken into consideration for the purpose of
calculating pension. Therefore, the learned State Government Counsel
submitted that as per the law laid down by the Hon'ble Full Bench of this
Court, in the above referred case, the respondent herein is not entitled to the
relief, and therefore, the impugned order passed by the learned Single Judge
is liable to be set aside. Further, the learned State Government Counsel
drew our to a decision rendered by us in the case of State of Tamil Nadu,
Rural Development and Panchayat Raj Department, Vs B.Devadoss
and another, in W.A.No.153 of 2019, dated 10.08.2021, and submits that,
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W.A.No.1374 of 2021
in the light of the decision of the Hon'ble Full Bench of this Court, in
R.Kaliyamoorthy's this Bench was pleased to allow the Writ Appeal and
set aside the impugned order. The learned State Government Counsel,
therefore, sought for allowing the present Writ Appeal.
5. Mr.G.Elanchezhiyan, the learned counsel appearing for the
respondent fairly accepted that the issue involved herein is covered by the
decisions relied upon by the learned State Government Counsel for
appellants.
6. We have heard the learned counsel appearing for the appellants
and the learned counsel for the respondent and also perused the materials
available on record.
7. The respondent was initially appointed as Section Writer on
16.08.1989 on daily wage basis. Thereafter, as per G.O.(Ms.)No.203, dated
19.10.2006, she was temporarily appointed as Record Clerk and her service
was regularized w.e.f. 20.10.2006. Subsequently, her probation was
declared satisfactory on 02.02.2009 by the third respondent w.e.f.
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W.A.No.1374 of 2021
14.12.2008 and she retired from service on her attaining the age of
superannuation on 31.12.2011. Since the service putforth by the respondent
on temporary basis has not been taken into consideration for the purpose of
computing pension, she filed the Writ Petition seeking to count 50% of the
service rendered by her on temporary basis as qualifying service for the
purpose of computing pensionary benefits. As rightly pointed out by the
learned State Government Counsel for the appellants herein, similar issue
came up for consideration before the Hon'ble Full Bench of this Court, in
R.Kaliyamoorthy's case (cited supra), and for better appreciation, the
operative portion of the judgment reads as follows;-
“ 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 W.A.No.158 of 2016
etc., batch 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
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W.A.No.1374 of 2021
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
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 in
W.A.No.158 of 2016 etc., batch 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."
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W.A.No.1374 of 2021
7.1 Thus, as per the law laid down by the Hon'ble Full Bench, in
R.Kaliyamoorthy's case, the Government servants, who were appointed on
or 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. In the present case, though
the respondent was appointed on 16.08.1989, her service was regularized
prospectively w.e.f. 19.10.2006. Hence, as per the law laid down by the
Hon'ble Full Bench of this Court, in the decision cited supra, viz., in
R.Kaliyamoorthy's case, the respondent/writ petitioner is not entitled to
the relief as sought for in the Writ Petition.
8. Accordingly, the Writ Appeal is allowed. The order of the
learned Single Judge passed in the Writ Petition No.8618 of 2018, dated
11.04.2018, is set aside. However, there is no order as to costs.
[P.S.N., J.] [K.R., J.]
18.08.2021
Index : Yes/No
sd
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W.A.No.1374 of 2021
Pushpa Sathyanarayana,J.,
&
Krishnan Ramasamy,J.,
sd
W.A. No.1374 of 2021
18.08.2021
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