Madras High Court
23 T.Sankaranarayanan vs 6 The Principal Accountant ... on 3 December, 2021
W.P.Nos.15394 of 2020 etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.Nos.15394, 15265, 3810 & 7875, of 2020
and
W.M.P.Nos.19251 to 19253, 19094, 4514 to 4516 & 9295 of 2020
W.P.No.15394 of 2020
1. G.Babu,
Up Graded Superintendent,
O/o Additional Chief Educational Officer,
Samagrashiksha,
Tiruvannamalai District- 606 601
2 S.S. Vakeesamani,
Statistical Inspector
O/o. Deputy Director of Economics and Statistics,
Tiruvannamalai,
Tiruvannamalai District- 606 604
3 K.Sankar,
Up-Graded Superintendent,
O/o District Educational Officer,
Tiruvannamalai District - 606 604.
4 A.Arulmurugan
Assistant,
O/o Chief Educational Officer,
Tiruvannamalai District 606 601.
1/39
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W.P.Nos.15394 of 2020 etc.
5 K.Neelakandan,
Assistant,
O/o. District Educational Officer,
BRC Campus, Polur,
Tiruvannamalai District - 606 803
6 S.Jaisankar,
Up-Graded Superintendent,
Directorate of Elementary Education,
DPI Campus, Nungambakkam,
Chennai-600 006.
7 M. Dhinakaran,
Assistant,
O/o. Additional Chief Educational Officer,
Samagrashiksha ,
Tiruvannamalai District- 606 601
8 G.Kannan,
Up-Graded Superintendent,
O/o District Educational Officer,
Arani,
Tiruvannamalai District - 632 301
9 K.Suresh,
Up Graded Superintendent
Directorate of Elementary Education,
Nungambakkam
Chennai -600 006
10 N. Ganesh,
Up Grade Superintendent,
Directorate of Elementary Education,
College Road, DPI Campus,
Chennai -600 006
2/39
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11 S.Thanikachalam
Up Grade Superintendent,
Directorate of Elementary Education,
DPI Campus, Nungambakkam
Chennai- 600 006
12 M. Murugan,
Assistant,
O/o Block Educational Officer,
TNAP Government Higher Secondary School Campus,
Tiruvannamalai Town,
Tiruvannamalai District - 606 601
13 A.Kumaravelan
Assistant,
O/o. District Educational Officer,
Tiruvannamalai.
14 M.Durai
Assistant,
O/o Chief Educational Officer,
Tiruvannamalai
Tiruvannamalai District- 606 601
15 R.Suresh Babu
Assistant,
Government Higher Secondary School,
Mandakolathur, Polur Taluk,
Tiruvannamalai District- 606 904
16 R.Ramesh,
Assistant,
O/o. District Educational Officer,
Tiruvannamalai,
Tiruvannamalai District-606 604
3/39
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17 S.Nahendiran,
Assistant,
Government Boys Higher Secondary School,
Thiruvalam, Katpadi Taluk,
Vellore District - 632 515
18 K. Sankaran
B.T.Assistant (Tamil),
Government High School,
Sadakuppam,
Tiruvannamalai District 606 753
19 K.Murugan,
Assistant,
O/o District Educational Officer ,
Chengam,
Tiruvannamalai District- 606 701
20 R.Thiyagarajan,
Up Graded Superintendent,
Directorate of Elementary Education,
DPI Campus, Nungambakkam
Chennai -600 006.
21 P.K.Ravi
Assistant,
O/o. Block Educational officer
Thurinjapuram,
Tiruvannamalai District 606 805
22 N.R. Anbarasu,
Accountant,
O/o District Treasury
Tiruvannamalai District,
Vengikkal
Tiruvannamalai District - 606 604
4/39
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W.P.Nos.15394 of 2020 etc.
23 T.Sankaranarayanan,
Statistical Inspector,
O/o. Commissioner of Economics and Statistics,
DMS Complex,
Theynampet,
Chennai 600 006
24 T.Jaya,
Block Statistical Inspector,
O/o. Deputy Director of Economics and Statistics,
Madurai,
Madurai District - 625 002. ..Petitioners
Vs
1 The Secretary to Government,
Personnel and Administrative Department
Secretariat, Chennai
2 The Secretary to Government,
Finance Department,
Secretariat Chennai 9
3 The Director of School Education,
College Road,
Chennai- 600 006
4 The Commissioner of Treasuries and Accounts,
Saidapet,
Chennai 15
5 The Commissioner
Department of Economics and Statics,
DMS Campus,
Anna Salai, Chennai 600 006
5/39
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W.P.Nos.15394 of 2020 etc.
6 The Principal Accountant General,
Tamil Nadu
O/o The Principal Accountant General (A and E),
Chennai,
Tamil Nadu ..Respondents.
Prayer:
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.17958 / P / 2015-17 dated 19.02.2018 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 and
AR) Department 23.11.2001) for the purpose of extension of the
pensionary benefits alone.
For Petitioners : Mrs.Dakshayani Reddy
For Respondents : Mr.Mr.L.S.M.Hasan Fizal,
Additional Government Pleader
for R1, R2, R4 & R5
Mr.Abishek Moorthy,
Government Advocate for R3
Mr.V.Vijay Shankar for R6
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W.P.No.15265 of 2020
1. K.Sivanesan
Up Graded Superintendent,
State Council for Educational REsearch and Training,
DPI Campus, Nungambakkam,
Chennai - 600 006.
2. V.Manivachagam,
Upgrraded Superintendent,
Directorate of School Education Nungambakkam,
Chennai - 600 006.
3. K.Kasi,Assistant, O/o District Educational Officer,
Chennai Central, Chennai - 600 015
4. K.Sekar,
Assistant,
District Institute of Education and Training,
G.Ariur & Post,
Tirukoilur Taluk,
Villupuram District 606 751
5. P.Pichandi,
Assistant,
O/o Block Educational Officer,
Mathur,
Krishnagiri District - 606 203
6. K.Rajendran,
Assistant,
O/o. Block Educational Officer,
Chetpet, Chetpet Taluk,
Tiruvannamalai District.
7. A.Shivaji,
Assistant, O/o Block Educational Officer,
Jamunamarthur, Tiruvannamalai District - 635 703
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8. S.Parvatham,
Assistant,
O/o District Educational Officer,
Tiruvannamalai - 606 604.
9. K.Madhavan,
Assistant,
O/o District Educational Officer,
Chengem,
Tiruvannamali District - 606 701.
10. G.Lakshmanan,
Assistant,
O/o District Educational Officer,
Chengem,
Tiruvannamali District - 606 701.
11. R.Rajan,
Assistant,
O/o District Educational Officer,
Polur,
Tiruvannamali District - 606 803.
12. K.Umamaheswari,
Assistant,
Government Boys Higher Secondary School,
Thandarampet,
Tiruvannamalai District - 606 704.
13. V.Elumalai,
Assistant,
Government Higher Secondary School,
Sorakulathur,
Tiruvannamalai Taluk,
Tiruvannamalai District - 606 802
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14. M.Dhivakaran,
Junior Assistant,
District Institute of Education and Training,
Kilpennathur, Tiruvannamalai Taluk,
Tiruvannamalai District - 606 611
15. S.Rajinikar,
Lab Assistant,
Government High School,
Kilsirupakkam, Thandarampet Taluk,
Tiruvannamalai District.
16. R.Gunasekaran,
Lab Assistant,
S.I. Government Higher Secondary School,
Chengam Road,
Tiruvannamalai Town,
Tiruvannamalai District - 606 603. ..Petitioners
Vs
1 The Secretary to Government,
Personnel and Administrative Department
Secretariat, Chennai
2 The Secretary to Government,
Finance Department,
Secretariat Chennai 9
3 The Director of School Education,
College Road,
Chennai- 600 006
4 The Principal Accountant General,
Tamil Nadu
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W.P.Nos.15394 of 2020 etc.
O/o The Principal Accountant General (A and E),
Chennai,
Tamil Nadu ..Respondents.
Prayer:
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
deeming 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 : Mrs.Dakshayani Reddy
For Respondents : Mr.Mr.L.S.M.Hasan Fizal,
Additional Government Pleader
for R1 & R2
Mr.Abishek Moorthy,
Government Advocate for R3
Mr.V.Vijay Shankar for R4
W.P.No.3810 of 2020
1. V.Kathiresan
2. R. Rajagopal
3. D. Ravi Kumar
4. E. Delhi Babu
5 N. Karthikeyan
6. R.Babu
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7. N.Rajasekaran
8. B.Elumalai
9. D.Ashok Kumar
10. M.M.Chella Pandian
11. V.S.Rajasekaran
12. N.Gowrisankar
13. S.Teekaraman
14. B.Parthiban
15. K.Manokaran
16. K.D.Sivakumar
17. D.Nakeeran
18. M.Gajendran
19. M.Sivasankaran
20. M.Ashok Kumar
21. S.Perumal
22. Charumathi
23. C.V.Sasikala
24. R.Sivakumar
25. M.Ravi
26. Anbu Selvan
27. V.Panchatcharam
28. N.Venkatesan
29. V.Boopalan
30. D.Rajasundar Salomon
31. S.Latha
32. R.Kalaiarasan
33. G.Vinayagam
34. S.Venkatesan
35. A.Nithyanandam
36. M.Balasubramanian
37. K.Dhanapal
38. P.Senthil Kumar
39. A.Jesuraj
40. O.Kumaran
41. R.Kumar
42. Thirupathi
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43. T.Krishnamurthy
44. T.Anbalagan
45. R.Arivalagan
46. V.Venugopal
47. G.Kalaimani
48. L.Ramamoorthy
49. B.Sethuraman
50. S.Pazhanivel
51. A.Nagarajan
52. K.Srinivasan
53. K.Rajakannu
54. S.R.Sudharsan
55. G.Rajan
56. G.Nithyavelan
57. S.Rajamanickam ..Petitioners
Vs.
1. The State of Tamil Nadu ,
Rep. by the Secretary to Government,
Personnel and Administrative Department,
Secretariat, Chennai 600009.
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
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5 The Commissioner of Commercial Tax,
Chepauk,
Chennai - 600 005
6 The Commissioner,
Director of Treasuries and Accounts,
Saidapet,
Chennai 600 015. ..Respondents
Prayer
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus calling for the records of the
First Respondent in Letter No. 770/P/2015-27 dated 27.08.2018 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 and
AR) Department 23.11.2001) for the purpose of extension of the
pensionary benefits .
For Petitioners : Mrs.Dakshayani Reddy
For Respondents : Mr.Mr.L.S.M.Hasan Fizal,
Additional Government Pleader
for R1, R2, R3, R5 & R6
Mr.Abishek Moorthy,
Government Advocate for R4
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W.P.No.7875 of 2020
1. M.Kalidoss
2. M.Renu
3. R.Settu
4. M.Natarajan
5. S.sridhar
6. J.C.Chandrasekaran
7. S.Kumar
8. D.Venkatachalam
9. S.Murugesan
10. M.Subburayan
11. G.Parthasarathy
12. G.Anbalagan
13. K.Vijaya ..Petitioners
Vs.
1. The State of Tamil Nadu ,
Rep. by the Secretary to Government,
Personnel and Administrative Department,
Secretariat, Chennai 600009.
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
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5 The Commissioner of Commercial Tax,
Chepauk,
Chennai - 600 005
6 The Commissioner,
Director of Treasuries and Accounts,
Saidapet,
Chennai 600 015. ..Respondents
Prayer
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus to direct the repsondents to linclude 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 and
AR) Department 23.11.2001) for the purpose of extension of the
pensionary benefits alone.
For Petitioners : Mrs.Dakshayani Reddy
For Respondents : Mr.Mr.L.S.M.Hasan Fizal,
Additional Government Pleader
for R1, R2, R3, R5 & R6
Mr.Abishek Moorthy,
Government Advocate for R4
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COMMON ORDER
These writ petitions have been filed 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& A R)
Department 23.11.2001) for the purpose of extension of the pensionary
benefits alone.
2. The petitioners were originally registered in the Employment
Exchange and their names had been sponsored and were employed in
1991 in the Census Department. On conclusion of the census operation,
their services came to be retrenched. The Government had issued
G.O.Ms.No.341 dated 13.10.1992 to absorb the retrenched employees
along with certain concessions. The said Government Order was issued
in respect of the persons who were employed in the earlier Census
operation conducted by the Government and those employees were
covered under the said Government Order.
3. The Government had also issued fresh order subsequently on
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G.O.Ms.No.44 dated 23.12.1993 wherein stringent condition was
imposed for the absorption of the temporary Census employees.
Aggrieved by the stringent condition prejudicial to the interests of the
employees seeking regularisation, some of the Census employees
approached the then Tamil Nadu Administrative Tribunal seeking a
direction to absorb them in the regular sanction posts as was done earlier
during the year 1971 and 1981. The learned Tribunal allowed the
application filed by the Census employees vide its order dated
08.04.1996.
4. The Government, at that point of time, filed an Appeal before
the Hon'ble Supreme Court of India in Civil Appeal No.810 of 1998 and
the Hon'ble Apex Court on 11.03.1999, directed the Government to
frame a scheme for regularisation of the employees and place the same
before the Court. Thereafter, G.O.Ms.No.144 dated 11.08.1999 was
passed prescribing certain conditions for the purpose of absorbing the
census employees. At this, the Hon'ble Apex Court, by order dated
28.09.1999 was pleased to impose certain conditions and directed the
Government to work out the scheme with two conditions deleted in
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respect to sponsorship by the employment exchange and exclusion of
upper age limit of 3 years.
5. In pursuant to the above direction of the Hon'ble Apex Court,
the Government issued G.O.Ms.No.30 dated 16.02.2000 again re-
introducing the sponsorship through the Employment Exchange for the
purpose of absorption. As the said condition was against the specific
direction of the Hon'ble Apex Court of India, a contempt petition was
filed in Cont.Petn. No.103 of 2000. The Hon'ble Supreme Court vide its
order dated 29.08.2001 was pleased to hold that the condition imposed
required sponsorship from the Employment Exchange was not in
conformity with the earlier order. The Hon'ble Supreme Court further
made it clear that the proper course for the Government would be, to
consider the case of the retrenched employees as separate category and
work out the scheme to fit them in various departments, without insisting
on any sponsorship by the Employment Exchange.
6. The Hon'ble Supreme Court directed the Government to
comply with the directions within three months from 29.08.2001. In
compliance with the order of the Hon'ble Supreme Court,
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G.O.Ms.No.209 dated 23.11.2001 was issued directing all the Heads of
Departments to absorb the retrenched census employees by calling for
the names from the District Collector and appointing them to suitable
post to their qualification. A further direction was also issued that no
further recruitment through Employment Exchange shall be resorted to
from the open market till the list of retrenched census employees of 1991
stood exhausted. Despite a specific direction issued on 23.11.2021, the
same had not been carried into action and therefore, the employees were
forced to file another Contempt Petition No.527 of 2002 before the
Hon'ble Supreme Court of India.
7. Thereafter, the Hon'ble Supreme Court of India was pleased to
direct for personal appearance of the Chief Secretary of the State of
Tamil Nadu vide order dated 02.05.2003. After appearance of the Chief
Secretary, the petitioner and other retrenched employees were granted
appointment on various dates in the year 2004. In the meanwhile, vide
G.O.Ms.No.259 dated 06.08.2003, new Contributory Pension Scheme
was introduced in the State of Tamil Nadu who were recruited on or
before 01.04.2003. Due to the deliberate inaction on the part of the
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respondent, they were brought under the new Contributory Pension
Scheme.
8. In the above circumstances, the petitioners herein approached
this Court in W.P.No.12194 of 2015 seeking a direction to bring them
under Old Pension Scheme, since the delay in appointment was totally
attributable to the conduct of the respondents and the petitioners were
not at fault at all. This Court vide order dated 24.11.2017 was pleased to
direct the respondent to pass orders on the representation by taking into
account the various orders passed by the Hon'ble Apex Court. However,
an order was passed on 09.02.2018 by the respondent rejecting the
request of the petitioners. Challenging the same, the present writ
petitions are filed.
9. The learned counsel for the petitioners, Mrs.Dakshayani Reddy,
has reiterated the above facts. According to her, the issue of including the
petitioners in Old Pension Scheme under the Tamil Nadu Pension Rules
1978 by treating their appointment with effect from 23.11.2001, the date
of G.O.Ms.No.209, P & A R Department, dated 23.11.2001, is no more
open to any contest, as recently the learned Judge of this Court dealt with
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the batch of writ petitions and passed a detailed order in W.P.Nos. 3733,
1404 & 3433 of 2020 dated 10.08.2021. The learned counsel has taken
this Court to the entire decision of the learned Judge which appeared to
be covering the issue on hand in toto.
10. Although on behalf of th respondents, a detailed counter
affidavit has been filed setting out the facts as stated above, as far as the
decision of the learned Judge of this Court in the above batch of writ
petitions, the same has not been disputed at all. A counter was filed in
January 2021 whereas the decision of the learned Judge has been passed
on 10.08.2021, much after the counter affidavit was filed. Therefore,
there is obviously no reference to the judgment of the learned Single
Judge of this Court in the above batch of writ petitions.
11. It is useful to refer to the entire order made in W.P.Nos. 3733,
1404 & 3433 of 2020 dated 10.08.2021, as the learned Judge has
referred to various events that had unfolded, when similarly placed
persons were before the Hon'ble Supreme Court of India and the issuance
of various G.Os and directions by the Hon'ble Apex Court. The order is
extracted hereunder:
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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:
5.Now, Shri V.Krishnamurthy, the learned
counsel for the appellants, has brought to our
notice that the appellant has issued an order
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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 delete these two
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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:~
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The order to the extent of clause (a) above
is not justifiable to ask the ex~employees to be
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;~
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W.P.Nos.15394 of 2020 etc.
1)The Director of Census operations, Tamil
Nadu, Chennai is requested to prepare a list of all
retrenched employees of Census 1991
category~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.
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W.P.Nos.15394 of 2020 etc.
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 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 exhausted.
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
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W.P.Nos.15394 of 2020 etc.
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.
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
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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 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
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W.P.Nos.15394 of 2020 etc.
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 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
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W.P.Nos.15394 of 2020 etc.
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
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
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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
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
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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
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the affairs of State which are borne on
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
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post only on 16.04.2003 and hence, within
the mischief of the new pension scheme
cannot stand the test of judicial scrutiny.
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
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W.P.Nos.15394 of 2020 etc.
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 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
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receipt of a copy of this order. No costs.
Consequently, connected Miscellaneous Petitions
are closed.
12. In view of the petitioners having been covered under the above
ruling of the learned Judge of this Court, which has also not been
controverted or denied on behalf of the respondents, these Writ Petitions
are allowed and the rejection order dated 19.02.2018 passed by the 1st
respondent in Letter No.17958/P/2015-17 is hereby set aside.
13. The respondents are directed to initiate appropriate action to
bring all these petitioners under the Old Pension Scheme that prevailed
before 01.04.2003 in terms of the Tamil Nadu Pension Rules, 1978. The
respondents are also directed to pass appropriate orders in this regard
within a period of twelve weeks from the date of receipt of a copy of this
order.
14. Accordingly, these Writ Petitions are allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
03.12.2021
Index : Yes/No
Speaking order : Yes/No
vsi
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W.P.Nos.15394 of 2020 etc.
To
1 The Secretary to Government,
Personnel and Administrative Department
Secretariat, Chennai
2 The Secretary to Government,
Finance Department,
Secretariat Chennai 9
3 The Director of School Education,
College Road,
Chennai- 600 006
4 The Commissioner of Treasuries and Accounts,
Saidapet,
Chennai 15
5 The Commissioner
Department of Economics and Statics,
DMS Campus,
Anna Salai, Chennai 600 006
6 The Principal Accountant General,
Tamil Nadu
O/o The Principal Accountant General (A and E),
Chennai, Tamil Nadu
7 The Commissioner of Commercial Tax,
Chepauk, Chennai - 600 005
8 The Commissioner,
Director of Treasuries and Accounts,
Saidapet,
Chennai 600 015.
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W.P.Nos.15394 of 2020 etc.
V.PARTHIBAN, J.
vsi
W.P.Nos.15394, 15265,
3810 & 7875, of 2020
03.12.2021
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