Madras High Court

S.Krishnan (Deceased) vs Government Of Tamil Nadu on 27 January, 2021

                                                                         W.P.No.24951 of 2008

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Date : 27.01.2021

                                                       CORAM:

                                    THE HON'BLE MR. JUSTICE R.SURESH KUMAR

                                                 W.P.No.24951 of 2008

                     1. S.Krishnan (Deceased)

                     2.K.Sugirdham
                     3.K.Velmurugan
                     4.Thilagavathy
                     5.K.Ramesh
                     6.K.Natanasigamani                                      ... Petitioners
                     [Petitioners 2 to 6 are substituted as LRs of the
                     deceased Petitioner as per order dt:20.07.2018
                     in M.P.No.1 of 2015]

                                                           Vs.

                     1.Government of Tamil Nadu
                       Represented by its Secretary,
                       Agriculture Department,
                       Fort St. George, Chennai - 600 009.

                     2.The Director,
                       Agriculture Department,
                       Chepauk, Chennai 600 005.

                     3.The Joint Director,
                       Agriculture Department,
                       Villupuram - 605 602.


                     1/18


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                                                                                 W.P.No.24951 of 2008

                     4.The Commissioner of Agriculture,
                       Chepauk, Chennai - 600 005.

                     5.The Principal Accountant General (A and E),
                       Office At DMS Compound, Teynampet,
                       Chennai - 600 018.

                     [R4 and R5 impleaded vide order dt. 24.09.2020
                     made in WMP.No.24089 of 2018]                                 ... Respondents

                     Prayer : Petition filed under Article 226 of Constitution of India praying for
                     issuance of a Writ of Mandamus directing the respondents to sanction
                     pension to the petitioner for his services rendered under the respondents as
                     Office Assistant from January 2003 to May 2007, in addition to his services
                     rendered in Tamil Nadu Co-operative Oil-seeds Growers Federation Ltd.,
                     from 1985 to 2002.

                               For Petitioner          : Mrs.S.Girija

                               For Respondents        : Mr.K.Magesh
                                                        Special Government Pleader


                                                        ORDER

The prayer sought for in this writ petition is to issue a writ of

mandamus directing the respondents to sanction pension to the petitioner for

his services rendered under the respondents as Office Assistant from

January 2003 to May 2007, in addition to his services rendered in Tamil

Nadu Co-operative Oil-seeds Growers Federation Ltd., from 1985 to 2002.

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2.The original petitioner one S.Krishnan was the employee of the

Tamil Nadu Co-operative Oil-seeds Growers Federation Limited (in short

'TANCOF').

3.Since the said TANCOF was decided to be closed by the policy

decision of the Government, the employees, who were working in the

TANCOF in the year 2002, were transferred for continuous employment at

the Government Department i.e., the Agriculture Department, Government

of Tamil Nadu, the respondents herein.

4.In this context, G.O.Ms.No.142 dated 04.06.2002 of Agriculture

Department was issued, by and which, such transfers of various positions

had been made.

5.After having been transferred to the State Agriculture Department

from TANCOF, the original petitioner was working for 4 1/2 years and on

reaching superannuation, he retired from service on 31.05.2007.

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6.After the original petitioner retired as such, since he was not paid

the regular pension, it seems to have been given a representation dated

23.07.2008 to the respondents seeking for a regular pension and the same

since has not been considered by the respondents, the present writ petition

has been filed with the aforesaid prayer.

7.Mrs.S.Girija, learned counsel appearing for the petitioners, would

submit that, though the original petitioner worked only for 4 1/2 years after

transferred to the present Department from TANCOF before his

superannuation and the said period may not be eligible for getting the

regular pension since the minimum service is required under Pension

Scheme for Government Servants to get pension is 10 years, the earlier

service rendered by the original petitioner at TANCOF should be treated as

a pensionable service, out of which, 50% of the service shall be taken into

account for the purpose of calculating the pension and accordingly, pension

shall be calculated and be paid to the original petitioner. Since the said

action has not been initiated and the erstwhile service rendered by the

original petitioner in the respondent Department since was not considered

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for the purpose of pensionable benefits, the petitioner, having failed in his

attempt to get orders on his representation dated 23.07.2008 as the same

was not considered by the respondents, filed the present writ petition,

therefore, the learned counsel for the petitioners seeks indulgence of this

Court.

8.The learned counsel appearing for the petitioners also relied upon a

decision of learned Judge made in W.P.Nos.2623, 3355, 3356 of 2014

dated 10.11.2017, whereby, the learned Judge of this Court, having

considered a similar issue of erstwhile TANCOF staff for getting pension,

had directed the Government to treat 50% of the service rendered by

employees at TANCOF for the purpose of pensionable benefits and

therefore, based on such calculation, the erstwhile TANCOF staff, who had

subsequently been transferred to the Department, i.e., Agriculture

Department, shall be entitled to get the regular pensionable benefits.

9.By relying upon the said judgment, the learned counsel appearing

for the petitioners would contend that, the similar relief as the one has been

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given to other erstwhile employees of TANCOF shall also be extended to

the petitioners.

10.However, Mr.K.Magesh, learned Special Government Pleader

appearing for the respondents, by relying upon the counter affidavit as well

as the relevant G.O.Ms.142 dated 04.06.2002, would submit that, none of

the TANCOF staff, who had been subsequently transferred to State

Government, would be entitled to get regular pension and in this context,

the learned Special Government Pleader relied upon various conditions

imposed in G.O.Ms.No.142 at para 5, which reads thus:

"5.Government have examined the above proposal carefully and have decided transfer the Area Agronomic Centre and Training Centre at Neyveli, the Area Of Tiruvannamalai, Virudhachalam, Neyveli, Cheyyar, Madurai, Erode and Tirunelveli the 151 staff attached to these units to the control of the Commissioner of Agriculture subject to maintaining a separate identity. Government accordingly pass the following orders:-

(i) The Centrally Sponsored Schemes and State Schemes and production, distribution of seeds and other related functions now performed by TANCOF shall be transferred to

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the Commissioner of Agriculture with immediate effect.

(ii) The Area Agronomic Centre & Training Centre at Neyveli and the Area Officer, Tiruvannamalai, Cheyyar, Vridhachalam, Madurai, Erode and Tirunelveli for the posts attached to it and all infrastructure available shall be transferred to control of Commissioner of Agriculture.

(iii) The following categories of post of TANCOF along with incumbents as detailed the annexure to this order shall be absorbed in the Department of Agriculture subject to maintaining a separate identity by creating equal number of posts relaxing the ban orders for creation of new posts issued in G.O.Ms.No... Finance Department, dated 23.11.2001.

                                    S.No.                Post in TANCOF              No. of Post



















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(iv) The employees, so absorbed shall be treated as Government Servants from the date of issue of this Order.

(v) The pay of all concerned shall be protected.

(vi) The leave earned in TANCOF shall be transferred to the Department of Agriculture.

(vii) The employer's contribution towards Employees Provident Fund with interest shall be credited into Government account.

(viii) The Employees contribution shall be transferred to General Provident Fund account (to be opened).

(ix) The Group Insurance amount, if any, shall be credited into Government account

(x) The gratuity amount for the period rendered in TANCOF shall be credited into Government accountant

(xi) The employees inducted by transfer from TANCOF will not be eligible for regular pension scheme for Government Servants, but they will be covered under the Contributory Pension Scheme that is being worked out by the Government of India."

11.Accordingly, the learned Special Government Pleader for the

respondents would submit that, since the original petitioner also had been

transferred only under G.O.Ms.No.142 and thereafter, he worked in the

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Department only for 4 1/2 years and he retired from service on 31.07.2007,

he was not having the full pensionable service or atleast the minimum

pensionable service of 10 years, therefore, he is not entitled to any

pensionable benefits as he claimed in this writ petition.

12.The learned Special Government Pleader would also contend that,

insofar as the judgment relied upon by the learned counsel appearing for the

petitioners in W.P.No.2623 of 2014 etc. dated 10.11.2017 is concerned, as

against the said decision, the respondents filed writ appeal in W.A.No.3046

of 2019 and the said appeal since is pending till date, the said judgment of

the learned Judge cannot be relied upon, hence, the learned Special

Government Pleader contended that, the original petitioner is not entitled to

get any regular pensionable benefits. However, he would further add that,

whatever the benefits accrued on the original petitioner, pursuant to

G.O.Ms.No.142, he was entitled to and if the same is not calculated and

paid either to the original petitioner i.e. erstwhile employee or the present

petitioners, who are the legal heirs of the petitioner, the same shall be

calculated and would be paid within a shortest possible time that may be

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fixed by this Court, he contended.

13.I have considered those rival submissions made by the learned

counsel appearing for both sides and have perused the materials placed

before this Court.

14.It is an admitted fact hat, the original petitioner was one of the

employee of the TANCOF from where he was transferred to the present

Department i.e., the respondent Department only under G.O.Ms.No.142,

dated 04.06.2002. At the time of transferring this petitioner along with other

employees, a set of conditions has been imposed in the said

G.O.Ms.No.142, especially Clause 5 of the G.O., which has already been

quoted herein above.

15.Sub-clause (iv) of Clause 5 reads that 'The employees, so absorbed

shall be treated as Government Servants from the date of issue of this order'

that means from the date of issuance of G.O.Ms.No.142, those erstwhile

employees of TANCOF since transferred to the Department of the State

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Government would be treated as Government employees or Government

servants, that means, prior to the issuance of G.O.Ms.No.142 i.e.,

04.06.2002 they would never be treated as Government Servants.

16.With regard to the service benefits payable to these employees

since transferred to the Department, sub-clause (v) to (xi) of Clause 5 of the

G.O. speaks about on various measures which have already been quoted.

Accordingly, these employees would be entitled to get provident fund,

group insurance, gratuity etc.

17.Sub-clause (xi) of Clause 5 of the G.O. is relevant, where, it has

been specifically stated that, the employees inducted by transfer from

TANCOF will not be eligible for regular pension scheme for Government

Servants, but they will be covered under the Contributory Pension Scheme

that is being worked out by the Government of India.

18.In this context, it is to be noted that, since the import of

G.O.Ms.No.142 dated 04.06.2002 has been accepted by all these employees

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including the present original petitioner and the adverse conditions i.e.,

Clause 5 of the G.O. since has not been questioned so far, the law will

presume that, what are the conditions imposed in G.O. would be binding

these employees including the original petitioner herein.

19.However, it is to be noted that, at the time of issuance of

G.O.Ms.No.142 dated 04.06.2002, the Pension Scheme was the Old Pension

Scheme and the New Pension Scheme was not brought into force.

Therefore, the words used in Sub-clause (xi) of Clause 5 of the G.O. makes

it clear that, they will be covered under the Contributory Pension Scheme

that is being worked out by the Government of India.

20.In that context, it is to be taken note of that this original petitioner

though was transferred in the year 2002 had worked only for less than 5

years as he retired from service on 31.07.2007, till such time, whether the

New Pension Scheme that is Contributory Pension Scheme was

implemented and if so, any contribution was made by the original petitioner

is not known.

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21.Be that as it may, insofar as the judgment dated 10.11.2017 made

in W.P.No.2623 of 2014 etc. heavily relied upon by the learned counsel

appearing for the petitioners is concerned, in that decision the import of

G.O.Ms.No.142 has not been considered. However, the learned Judge has

directed the respondents therein to calculate atleast half of the service

rendered by these employees at TANCOF also along with their regular

service from 1.4.2002 for the purpose of grant of pensionable benefits.

However, as against the said order, it is brought to the notice of this Court

that, intra- Court appeal has been filed by the respondents and the same is

pending before this Court.

22.However, the learned counsel appearing for the petitioners has

vehemently contended that, atleast two or three of the erstwhile employees

of TANCOF, who also did not have the minimum eligible pensionable

service after they transferred to Government, were given full pension, of

course taking the analogy of calculating 50% of the service they rendered

for TANCOF prior to they were brought into the Government pool. In

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respect of the said submission made by the learned counsel appearing for

the petitioners, the learned Special Government Pleader fairly submits that,

if at all any decision, the Government has taken by calculating 50% of the

service already rendered at TANCOF for the purpose of pensionable

benefits, that gesture certainly would be extended to this original petitioner

also and those aspects definitely would be taken care of and decided by the

respondents on the request made by the original petitioner, which according

to the learned counsel appearing for the petitioners, has not so far been

disposed of.

23.Considering the aforesaid legal aspects and factual matrix of the

case, since the conditions imposed in Clause 5 of G.O.Ms.No.142 will bind

both the parties i.e., the original petitioner who was the employee of the

Department and the import of the G.O. since has not been questioned, the

original petitioner cannot now turn around and say that, he is entitled to get

regular pension.

24.However, insofar as the direction issued by the learned Judge of

this Court, in the judgment referred to above dated 10.11.2017, when the

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judgment, despite the same being appealed by way of intra-Court appeal,

has been acted upon and 50% of the service rendered by them in the

erstwhile TANCOF has been taken into account for the purpose of

pensionable benefits and accordingly, such full pension or eligible pension

on regular basis for sanction to some erstwhile TANCOF employees are

taken place or extended can also be gone into by the respondents while

deciding the issue, as has been raised by the petitioner through his

representation dated 23.07.2008.

25.In that view of the matter, this Court is inclined to dispose of this

writ petition with the following directions:

(i) That the respondents are hereby directed to consider

the representation of the petitioner viz., S.Krishnan (since

deceased) dated 23.07.2008 and decide the same on merits and

in accordance with law.

(ii) While deciding the same, the respondents shall take

into account the order passed by the learned Judge i.e., in

W.P.No.2623 of 2014 etc. batch dated 10.11.2017 of course

subject to the appeal filed by the respondents in this regard and

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also the fact that at the time of passing of G.O.Ms.No.142

dated 04.06.2002 only the Old Pension Scheme was in force

and New Pension Scheme i.e., Contributory Pension Scheme

was not introduced and also take into account that, atleast some

erstwhile employees of TANCOF was considered for giving

regular pension by taking into account their erstwhile service

rendered by them in the TANCOF either full service or half