Madras High Court
G.Mayavan vs The Director Of Town Panchayat on 2 December, 2021
Order dated 02.12.2021
in W.P.Nos.17870 and 17871 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 02.12.2021
Coram:
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.Nos.17870 and 17871 of 2021
and
W.M.P.No.19077 of 2021
G.Mayavan, S/o Gurunathan .. Petitioner in W.P.No.17870 of 2021
1. P.Ulaganathan, S/o Palani
2. K.Palanisamy, S/o Kittan
3. N.Loganathan, S/o Natchimuthu
4. S.Balamani, W/o Shanmugam
5. P.Ranjitham, W/o Prabakaran
6. A.Rani, W/o Alagarsamy
7. M.Thangavel, S/o Marimuthyu .. Petitioners in W.P.No.17871 of 2021
Vs.
1. The Director of Town Panchayat,
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Order dated 02.12.2021
in W.P.Nos.17870 and 17871 of 2021
8th Floor, No.75, Santhome High Road,
MRC Nagar, Raja Annamalai Puram,
Chennai-600 028. .. First respondent in both the Writ Petitions
2. The Executive Officer,
Puliyur Selection Grade Town Panchayat,
Puliyur, Karur District.
.. Second respondent in W.P.No.17870 of 2021
3. The Executive Officer,
Pallapatty Town Panchayat,
Pallapatty, Karur District.
.. Third respondent in W.P.No.17870 of 2021
and second respondent in W.P.No.17871 of 2021
Writ Petition No.17870 of 2021 filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Mandamus to direct
the first respondent to issue suitable instructions to the third respondent
enabling him to bring the petitioner under Old Pension Scheme from the date
of his eligibility in terms of the judgment passed in paragraph 45(ii) of the
Full Bench judgment, reported in 2019 (6) CTC Page 705 and
consequentially to direct the third respondent to grant all eligible benefits to
the petitioner.
Writ Petition No.17871 of 2021 filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Mandamus to direct
the first respondent to issue suitable instructions to the second respondent
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in W.P.Nos.17870 and 17871 of 2021
enabling him to bring the petitioners under Old Pension Scheme from the date
of his eligibility in terms of the judgment passed in paragraph 45(ii) of the
Full Bench judgment, reported in 2019 (6) CTC Page 705 and
consequentially to direct the second respondent to grant all eligible benefits to
the petitioner.
For petitioners : Mr.P.I.Thirumoorthy
in both the Writ Petitions
For respondents : Mr.L.S.M.Hasan Fizal,
Addl.G.P.for R-1 in both W.Ps.
Mr.V.P.R.Elamparithi,
Addl.Govt.Pleader for RR-2 & 3
in W.P.No.17870 of 2021
& for R-2 in W.P.No.17871 of 2021
COMMON ORDER
W.P.No.17870 of 2021 is filed praying for issuance of a Writ of
Mandamus to direct the first respondent to issue suitable instructions to the
third respondent, enabling him to bring the petitioner under the Old Pension
Scheme from the date of his eligibility, in terms of the judgment of this Court,
passed in paragraph 45(ii) of the Full Bench judgment, reported in 2019 (6)
CTC Page 705 (The Government of Tamil Nadu rep. by Secretary to
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Government, Public Works Department, Secretariat, Chennai-600 009 and
others Vs. R.Kaliyamoorthy) and consequentially to direct the third
respondent to grant all eligible benefits to the petitioner.
2. Writ Petition No.17871 of 2021 is filed praying for issuance of a
Writ of Mandamus to direct the first respondent to issue suitable instructions
to the second respondent, enabling him to bring the petitioners under the Old
Pension Scheme from the date of his eligibility, in terms of the judgment of
this Court, passed in paragraph 45(ii) of the Full Bench judgment, reported in
2019 (6) CTC Page 705 (The Government of Tamil Nadu rep. by Secretary to
Government, Public Works Department, Secretariat, Chennai-600 009 and
others Vs. R.Kaliyamoorthy) and consequentially to direct the second
respondent to grant all eligible benefits to the petitioner.
3. The case of the petitioners is that they were working as Sanitary
workers in the respondent Town Panchayat. The petitioners were appointed
as Sweeper on 26.02.1999 with a consolidated pay of Rs.900/- per month and
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in W.P.Nos.17870 and 17871 of 2021
later brought under regular time scale of pay by the respondent on
28.07.2006 with effect from 23.06.2006. The petitioners approached this
Court seeking regular time scale from the date of completion of three years
consolidated pay and this Court allowed the writ petition and directed to
award regular time scale from the date of completion of three years
consolidated pay service and the Government also implemented the order in
G.O.Ms.No.142 MAWSS Department dated 23.09.2015. Ultimately, the
petitioner in W.P.No.17870/2021 was brought under the regular time scale of
pay by the 2nd respondent on 14.10.2015 with effect from 26.02.2002 and
the petitioners in W.P.No.17871/2021 were brought under the regular time
scale of pay by the 2nd respondent on 10.10.2017 with effect from
01.06.2002.
4. The grievance of the petitioners herein is that they have been brought
under the new pension scheme (CPS) despite the fact that they were brought
under regular time scale with effect from 26.02.2002 and 01.06.2002
respectively. Similarly placed persons working in Aravakuruchi Town
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in W.P.Nos.17870 and 17871 of 2021
Panchayat had approached this Court in W.P.No.40736/2016 and the learned
Judge of this Court passed an order on 16.06.2018 directing the writ
petitioners therein to be brought under the old pension scheme and count 50%
NMR service along with regular service for the purpose of pension.
According to the petitioners, they are also similarly placed persons and
therefore, representations were submitted to the 1st respondent on 27.07.2021
to bring them under the old pension scheme. As there was reply, the writ
petitions have been filed with a prayer for issuance of writ of mandamus to
direct the 1st respondent to bring the petitioners under old pension scheme in
terms of the judgement of the Full Bench of this Court reported in 2019(6)
CTC 705.
5. When these writ petitions have been taken up for hearing, the
learned counsel for the petitioners would submit that they are covered under
the ruling of the Hon'ble Full Bench decision of this Court reported in 2019(6)
CTC 705 (The Government of Tamilnadu vs. R.Kaliyamoorthy), particularly,
with reference to paragraph 45 which is extracted hereunder
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in W.P.Nos.17870 and 17871 of 2021
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 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 W.A.No.158 of 2016 etc., batch their past service for the
purpose of determination of qualifying service for pension.
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Order dated 02.12.2021
in W.P.Nos.17870 and 17871 of 2021
(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."
The learned counsel would draw reference to sub para (ii) and (iii) of the
above paragraph 45.
6. The learned counsel would also refer to the other order passed by
the learned Single Judge of this Court in W.P.No. 4481/2021 dated
16.05.2021. The order of the learned Judge referring to the observation of the
Division Bench order is extracted hereunder.
2. These petitioners have earlier approached this
Court by way of Writ Petition in W.P.No.40736 of 2016,
with a prayer to bring them under regular time scale, which
was allowed by this Court on 06.06.2018 and aggrieved by
the said order, a Writ Appeal was preferred before the
Division Bench by the Government and on 10.06.2019 in
W.A.No.701 of 2019 the Division Bench has observed as
follows:~
"11. However, from a perusal of the proceedings of
the 2nd respondent, it is seen that the writ petitioners were
appointed on a consolidated pay on 02.11.1998 and
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in W.P.Nos.17870 and 17871 of 2021
thereafter by order of this Court they were regularised with
effect from 17.11.2001, which is much prior to the
introduction of the New Pension Scheme. The writ
petitioners are entitled to the Old Pension Scheme since
they have been brought under the Regular Time Scale as
early as in the year 2001. In fact, by proceedings in
Na.Ka.No.477/2015 dated 16.10.2015, the 2nd respondent
has fixed the revised pay scale for the 1st petitioner with
effect from 17.11.2001.
In view of the above there is no merits in the writ
appeal. The Writ Appeal stands dismissed. There shall be
no order as to costs. Consequently, connected Civil
Miscellaneous petition is also closed."
3. When the petitioners have been brought under the
regular time scale and that it has been observed that they are
entitled to old pension scheme, the petitioners cannot file one
more Writ Petition seeking for extension of the benefits of old
pension scheme and the same is impermissible in the eye of law.
The intention of the petitioners appears that they want a direction
to the respondents to implement the orders of the Division Bench
and this Court is not inclined to issue such a blanket direction to
the Respondents. A reading of Paragraph No.11 of the order in
W.A.No.701 of 2019 makes it very clear that the petitioner were
initially appointed on consolidated pay and thereafter, they were
brought under regular time scale as early as in 2001, entitling
them to get the benefits of old pension scheme. The
non~compliance of the order is a clear violation of orders of this
Court and amounts to contempt. Hence the remedy lies to the
petitioners to approach the Division Bench, by way of initiation of
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in W.P.Nos.17870 and 17871 of 2021
contempt proceedings and petitioners cannot seek the relief of
implementation of the order, by filing a separate Writ Petition, as
the cause of action is a continuous one and Section 20 of the
Contempt of Courts Act cannot abridge the powers of the
Constitution of India and the powers under Article 215 of the
Constitution are supreme than the powers enumerated under the
Contempt of Courts Act.
4. Writ petition is disposed of with the above observation.
No costs. Consequently connected miscellaneous petition is also
closed.
7. The learned counsel also referred to the subsequent order of the
respondents dated 05.07.2021 implementing the order of the Division Bench
in respect of those employees of Aravakuruchi Town Panchayat.
8. The above factual legal position has not been disputed by the learned
Additional Government Pleader appeared for the respondents.
9. In view of the admitted position as narrated above, the petitioners
herein are also entitled to be brought under the old pension scheme as that of
the employees who had been brought under the regular time scale prior to
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in W.P.Nos.17870 and 17871 of 2021
01.04.2003. The Writ Petitions are accordingly allowed.
10. The first respondent is directed to issue appropriate orders towards
bringing these petitioners under old pension scheme from the date of their
eligibility.
11. The first respondent is also directed to pass appropriate orders in
this regard, after taking note of the decision of the Full Bench of this Court as
stated in the prayer itself and also the other decisions and the orders
implementing the decisions of this Court as aforementioned and pass final
orders within a period of eight weeks from the date of receipt of a copy of
this order.
No costs. Consequently, W.M.P.No.19077 of 2021 is closed.
02.12.2021
Index: Yes/no
Speaking Order: Yes
vsi
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Order dated 02.12.2021
in W.P.Nos.17870 and 17871 of 2021
To
1. The Director of Town Panchayat,
8th Floor, No.75, Santhome High Road,
MRC Nagar, Raja Annamalai Puram,
Chennai-600 028.
2. The Executive Officer,
Puliyur Selection Grade Town Panchayat,
Puliyur, Karur District.
3. The Executive Officer,
Pallapatty Town Panchayat,
Pallapatty, Karur District.
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in W.P.Nos.17870 and 17871 of 2021
V. PARTHIBAN, J
vsi
W.P.Nos.17870 and 17871 of 2021
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Order dated 02.12.2021
in W.P.Nos.17870 and 17871 of 2021
02.12.2021
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