Madras High Court
Block Development Officer vs K.Bethan on 1 July, 2021
W.A.No.1446 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01 .07.2021
CORAM
The Hon'ble Mrs.Justice Pushpa Sathyanarayana
and
The Hon'ble Mr.Justice Krishnan Ramasamy
W.A. No.1446 of 2017
and
C.M.P. No.19430 of 2017
Block Development Officer,
Namakkal.
... Appellant
vs
1. K.Bethan
2. The State of Tamil Nadu
rep. by the Secretary to Government,
Finance (Pension) Department,
Secretariate, Chennai – 09.
3. The District Collector,
Namakkal.
4. The Accounts Officer,
Office of the Accountant General,
Accounts and Entitlements,
Nandhanam, Chennai -18. ...Respondents
Prayer: Writ Appeal filed under clause 15 of the Letters Patent against the
order dated 23.06.2014 made in W.P. No.9198 of 2014.
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W.A.No.1446 of 2017
For Appellant : Mr.V.Jayaprakash Narayanan
For Respondent-1 : Mr.R.Jayaprakash
For Respondents 2 to 4 : Mr.R.Neelakandan
State Government Counsel
****
JUDGMENT
(Delivered by Krishnan Ramasamy, J.,)
This is an intra Court Appeal filed against the order, dated
23.06.2014 made in W.P. No.9198 of 2014.
2. The facts of the case, which led to the filing of this Writ
Appeal are as follows :-
i) The first respondent/writ petitioner was initially appointed as
Panchayat Assistant (Part-time) by order, dated 19.03.1984. Later, on
31.12.1990, he was absorbed into service as regular full time Panchayat
Assistant and promoted as Junior Assistant on 15.12.2005 and from the date
of said appointment till the date of retirement, i.e. from 31.12.1990 till
31.08.2007, he has put in 23 years of service. Since the service putforth by
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W.A.No.1446 of 2017
the writ petitioner was not taken into consideration for grant of pension, he
filed the Writ Petition, seeking for a mandamus to the respondents to count
entire service rendered by him in the cadre of Panchayat Assistant from
31.12.1990 till 15.12.2005 and the service rendered in the cadre of Junior
Assistant from 15.12.2005 till the date of his retirement on 31.08.2007 as
qualifying service for the purpose of conferment of pension brought under
the pension scheme.
ii) The learned Single Judge, after hearing both sides,
allowed the Writ Petition with a direction to the respondents 1, 2 and 4 to
count 50% of the service rendered by the writ petitioner as part time
Panchayat Assistant before their regularisation as full time Panchayat
Assistant together with the service rendered by him as full time Panchayat
Assistant for the purpose of deciding as to whether the writ petitioner is
entitled for pension and to pass orders.
3. Mr.V.Jayaprakash Narayanan, the learned counsel appearing on
behalf of the appellant submitted that, a similar issue came for
consideration before the Hon'ble Full Bench of this Court, in a batch of
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W.A.No.1446 of 2017
case, being W.A.Nos.158, 314, etc., of 2019 (Government of Tamil Nadu
Vs. R.Kaliyamoorthy, dated 29.08.2018, 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, he submitted that as per the law laid down by the Hon'ble Full
Bench of this Court, in the above referred case, the writ petitioner is not
entitled to the relief, and therefore, the impugned order passed by the
learned Single Judge is liable to be set aside.
4. Mr.R.Jayaprakash, the learned counsel appearing for the first
respondent/writ petitioner submits that since the service rendered by the
writ petitioner in the cadre of part time as well as full time Panchayat
Assistant was not treated as qualifying service for the purpose of
calculating pension, he filed the Writ Petition, and the learned Single Judge
considering the fact that the writ petitioner was in continuous service as
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W.A.No.1446 of 2017
part time/full time Panchayat Assistant and without any break, he was
absorbed as full time Panchayat Assistant, whereas, the appellant and
respondents 2 to 4 have taken into consideration of his service only from
the date of his entry into the post of Junior Assistant on 15.12.2005, and
declined to grant pension and this aspect was rightly taken note of by the
learned Single Judge and he was pleased to allow the Writ Petition and the
same calls for no interference by this Bench.
5. Mr.R.Neelakandan, the learned State Government Counsel for
respondents 2 to 4 adopts the arguments made by the learned counsel for
the appellant.
6. We have heard the learned counsel appearing for the appellant,
the learned counsel for first respondent and State Government Counsel for
respondents 2 to 4 and also perused the materials available on record.
7. The writ petitioner was initially appointed as Panchayat Assistant
(Part-time) by order, dated 01.03.1984, thereafter, he was absorbed as
Panchayat Assistant (full time) 31.12.1990 and further promoted as Junior
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W.A.No.1446 of 2017
Assistant on 15.12.2005, by an order, dated 14.12.2005, and retired from
service 31.08.2007. Now, the writ petitioner filed the Writ Petition seeking
to count 50% of the service rendered by him on temporary basis as
qualifying service for the purpose of computing pensionary benefits. As
rightly pointed out by the learned Special Government Pleader for the
appellant 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
Service Rules will be entitled to get
pension as per the Tamil Nadu Pension
Rules, 1978.
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W.A.No.1446 of 2017
(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."
7.1 Thus, as per the law laid down by the Hon'ble Full Bench,in
the above referred 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
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W.A.No.1446 of 2017
determination of qualifying service for pension. In the present case, though
the writ petitioner was appointed by an order, dated 19.03.1984 as part time
Panchayat Assistant, his service was regularized prospectively w.e.f.
14.12.2005. Hence, as per the law laid down by the Hon'ble Full Bench of
this Court, in a decision cited supra, the writ petitioner is not entitled to the
relief as sought for in the Writ Petition.
7.2 However, the writ petitioner has not challenged the order, dated
14.12.2005, to regularize him from the date of his initial appointment as full
time Panchayat Assistant w.e.f. 31.12.1990. We find that the writ petitioner
has put in 21 years of service before the date of regularisation. Since there
was no body to look after the job of the Panchayat Assistant, the writ
petitioner was appointed. The appellant also extracted work for a period of
21 years and regularised his service belatedly w.e.f. 14.12.2005, and it is
not the fault of the writ petitioner and it is owing to the failure of the
decision making process on the part of the respondent/State to create the
suitable post/sanctioned post to the position of the appellant, in time, as the
writ petitioner's service with the panchayat is very much needed, for which,
the writ petitioner cannot be expected to lose the employment benefits, to
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W.A.No.1446 of 2017
which, he is legally entitled to from 31.12.1990 to 14.12.2005. We have
also noticed that the State have regularised similarly placed employees at
every point of time, then and there. When such being the case, certainly,
the same yardstick would apply to the writ petitioner, who is also entitled
for such benefits of regularisation, and at any cost, his entitlement cannot be
deprived. The respondent/State is supposed to have regularised the writ
petitioner immediately when he was appointed as regular Panchayat
Assistant but they have failed do so. We are not compelling the
respondents/State to regularise the service of the writ petitioner, but any
regularisation by the State should not be in a pick and choose manner. If
any decision is taken to regularise the service of temporarily or
consolidated pay employees in the earlier occasions as Panchayat Clerk,
Panchayat Assistant, etc., in any other Panchayat, the same principle will
apply to the writ petitioner as well, since the writ petitioner is entitled for
regularisation with effect from the date of his initial regular appointment as
Panchayat Assistant.
7.3. However, before parting with this case, it would not be out of
place to mention here that we have come across many instances, where, the
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W.A.No.1446 of 2017
State had the practice to regularize the employees only at the fag end of
their career, i.e. two years or three years before the employee retires from
service. After extracting work from the employees for one or two decades,
regularising their service at the verge of retirement would not benefit the
employees in any way, and by doing so, the employees would obviously
lose their entire terminal benefits, which is their hard earned money by
sweat of the brow. We further noticed that the State had the practice of
reckoning 50% of the temporary service rendered by the employees for the
purpose of computing pensionary benefits, only when the aggrieved
employees are coming before the Court craving for justice and obtaining
orders from the Court. We still have a ray of hope that State would take care
of its employees, at least, in the womb of time by providing all the benefits,
to which, they are legally entitled to, inasmuch as, the State is functioning
only for the well being of its people.
7.4 Therefore, as the writ petitioner has not challenged the order
of regularization, dated 14.12.2005 but has filed Writ Petition seeking to
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W.A.No.1446 of 2017
count 50% of the service rendered by him on temporary basis as qualifying
service for the purpose of computing pensionary benefits, he is not entitled
to the relief sought for in the Writ Petition, in view of the law laid down by
the Hon'ble Full Bench of this Court, in R.Kaliyamoorthy's case (cited
supra).
8. Accordingly, this Writ Appeal is allowed. The impugned order
passed by the learned Single Judge, dated 23.06.2014 made in W.P.
No.9198 of 2014 is set aside. No costs. Consequently, the connected civil
miscellaneous petition is closed.
[P.S.N., J.] [K.R., J.]
01.07.2021
Index : Yes/No
sd
To
1. The State of Tamil Nadu
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W.A.No.1446 of 2017
rep. by the Secretary to Government,
Finance (Pension) Department,
Secretariate, Chennai – 09.
2. The District Collector,
Namakkal.
3. The Accounts Officer,
Office of the Accountant General,
Accounts and Entitlements,
Nandhanam, Chennai -18.
Pushpa Sathyanarayana,J.,
&
Krishnan Ramasamy,J.,
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W.A.No.1446 of 2017
sd
W.A. No.1446 of 2017
01.07.2021
https://www.mhc.tn.gov.in/judis/
