Madras High Court
The Secretary To Government vs C.Tamilselvan on 20 July, 2021
W.A(MD)No.979 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.A(MD)Nos.979 to 982 and 986 to 988 of 2020
and
CMP(MD)Nos.5314, 5315, 5319, 5321,
5335, 5336 and 5337 of 2020
W.A(MD)No.979 of 2020
1.The Secretary to Government,
Rural Development and Panchayat Raj Department,
Secretariat, Chennai -600 009.
2.The District Collector,
Ramanathapuram District,
Ramanathapuram.
3.The Panchayat Union Commissioner,
Thiruvadanai, Thiruvadanai Taluk,
Ramanathapuram District.
... Appellants / Respondents
Vs.
C.Tamilselvan ... Respondent / Writ Petitioner
PRAYER: The Writ Appeal is filed under Clause 15 of Letters Patent, pleased to
set aside the judgment dated 20.11.2019 in W.P.(MD)No.20757 of 2015 on the
file of this Court.
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W.A(MD)No.979 of 2020
For Appellants : Mr.Muthugeethaiyan
Special Government Pleader
For Respondent :Mr.S.Viwalingam
in all WAs
COMMON JUDGMENT
[Judgment of the Court was delivered by B.PUGALENDHI, J.]
These writ appeals are filed as against the common order of this Court
passed in W.P(MD)Nos.20757 to 20764 of 2015, dated 20.11.2019.
The respondents / writ petitioners filed the writ petitions challenging the
Government Order in G.O.Ms.No.131, Rural Development and Panchyat Raj
(E5) Department dated 01.10.2015 and for a consequential direction to direct
that the employees covered in the proceedings passed by the second respondent
in Na.Ka.No.V4/13425/2008, dated 28.11.2008 are entitled to come under the
Tamil Nadu old Pension Scheme without fixing the crucial date, i.e.,
01.04.2003.
2.The case of the respondents / writ petitioners is that they were
appointed as Fitter Assistants in various Panchyat Unions on various dates after
01.04.1993 on daily wage basis, their services were regularised after completion
of the ten years of service and they were brought under the regular time scale of
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pay after 01.04.2003 on various dates by the proceedings of the second
respondent and subsequently, promoted as Office Assistant as follows:
Sl. Respondent / writ date of date of grant of date of
No. petitioner appointment time scale of pay promotion
1 C.Tamil Selvan 03.05.1993 02.05.2003 03.11.2006
2 M.Murugesan 01.08.1993 31.07.2003 27.11.2006
3 P.Nagarajan 01.12.1993 30.11.2003 03.11.2006
4 T.Kannaiah 05.10.1995 04.10.2005 03.11.2006
5 R.Krishnamoorthy 05.03.1996 04.03.2006 11.06.2007
6 N.Muthuirulappan 28.06.1996 27.06.2006 15.06.2006
7 N.Thennarasu 10.06.1996 09.06.2006 15.06.2006
3.The grievance of the writ petitioners is that vide G.O.Ms.No.131
Rural and Development Panchayat Raj (ES) Department dated 01.10.2015 an
amendment has been made that the employes whose services were regularised
before 01.04.2003 shall come under the Old Pension Scheme and those
employees, whose services were regularised on or after 01.04.2003 shall come
under the New Contributory Pension Scheme and this Government Order is
against Rule 11(2) of the Tamil Nadu Pension Rules, 1978.
4.According to the writ petitioners they are entitled for pension by
taking into account 50% of the services rendered by them in Fitter Assistant
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W.A(MD)No.979 of 2020
post as per Rule 11(2) of the said Rules. Therefore, aggrieved over said
Government Order, they filed the writ petitions.
5.This Court allowed the writ petitions by order dated 20.11.2019
directing the appellants to count 50% of the services rendered by the
respondents / writ petitioners in the post of Fitter Assistant for the purposes of
pension along with their services in timescale of pay and quashed the said
Government Order. Aggrieved over the same, the present writ appeals are filed
by the department.
6.Mr.M.Muthugeethaiyan, learned Special Government Pleader
appearing for the appellants submitted that the order dated 20.11.2019 passed in
W.P(MD)Nos.20757 to 20764 of 2015 is against the decision of the Hon'ble
Supreme Court and the orders of the Hon'ble Full Bench of this Court in
W.A.No.158 of 2016 and a batch of cases, dated 03.12.2019. He would further
submit that as per Rule 1l (2) of the Tamil Nadu Pension Rules, 1978, half of
the service paid from contingencies shall be allowed to count towards
qualifying services for pension along with regular services provided, the
services shall be in a job involving whole time employment. The respondents
were appointed as Fitter Assistants on daily wage basis and therefore 50% of
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their services rendered in that Fitter Assistant post cannot be taken into
consideration for calculation of pension. He would further submit that the
respondents, who were working on daily wage basis and were brought into
regular stream only after 01.04.2003. Therefore, they are not entitled for
pensionary benefits by calculating the services rendered
7.The learned Special Government Pleader further submitted that the
respondents, who were appointed as Fitter Assistant on daily wage basis after
01.04.1993 and later brought into regular time scale after the crucial period of
01.04.2003 and promoted as Office Assistant. The respondents' service was only
daily wage basis and were brought into regular stream only with effect from the
year 2003, i.e. after the crucial date of 01.04.2003. Therefore, as per clause
(v) of the decision of a Full Bench of this Court in State of Tamil Nadu Vs
R.Kaliyamoorthy, [in WA No. 158 of 2016 and batch cases dated 03.12.2019],
the respondents are not eligible for calculating the qualifying service for
pension by taking to account 50% of the service rendered on daily wage basis.
8.The learned Special Government Pleader has also relied upon the
following judgments in support of his contention:
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i.State of Karnataka and others vs Ameerbi and others’ reported in
(2007) 11 SCC 681
ii.Secretary to Government, School Education Department v V.
Govindasamy, reported in CDJ Law Journal 2014 SC 146.
iii.State of Tamil Nadu v Seeniammal’ and others [WA (MD) No.
1157 of 2013]
iv.State v M. Palanikani and others [WA (MD) No. 587 of 2014 dated
03.12.2014]
v. State of Tamil Nadu Vs R.Kaliyamoorthy, [Full Bench in WA No.
158 of 2016 and batch cases dated 03.12.2019]
9.Mr.S.Viswalingam, learned Counsel appearing for the respondents /
writ petitioners submitted that the writ petitioners were appointed as Fitter
Assistants in the year 1993, they served on daily wage basis nearly for ten years
and thereafter their services were regularised in the year 2003 and subsequently,
they were promoted as Office Assistants and they are still in service.
Thus, according to the learned Counsel for the respondents, the services of the
respondents on daily wage in different Panchayat Unions is ten years and they
are due to retire after the year 2025. Therefore, considering the similar orders
passed by this Court on various occasions, the writ Court rightly allowed the
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writ petitions and there is no reason to interfere with the orders of the writ
Court.
10.He would further submit that as per Rules 11(2) and 11(4)(iii) of
the Tamil Nadu Pension Rules, the services rendered even in non-provincialised
services, consolidated pay, honorarium, or daily wage basis shall be followed by
absorption in the regular service before 01.04.2003, half of such services, i.e.,
50% shall be taken for calculation of pension. The cut off date 01.04.2003
mentioned in Rule 11(4) of Tamil Nadu Pension Rules, 1978 has been taken
away in the case law reported in 2014 (6) MLJ 316, which attracted the
attention of the Division Benches and the Special Leave Petition filed by the
State was also dismissed and the Hon'ble Supreme Court assigned reasons and it
is not a dismissal of Special Leave Petition simpliciter and after detailed
discussion as per the decision reported in 2018 (1) SWC 689. Therefore, the
orders of the Government which are executive nature cannot override the above
said Rule 11(2) of Tamil Nadu Pension Rules, 1978 and the orders of the
Division Bench, confirmed by the Hon'ble Supreme Court.
11.The regularisation of service is the exclusive domain of the
employer and as per Rule 11(2) of the Tamil Nadu Pension Rules, 1978 the
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W.A(MD)No.979 of 2020
services of the employees in a non provincialised services or daily wage or
honorarium or consolidated pay are entitled to count 50% of their services
before absorption in the time scale of pay. However, the cut off date was
introduced in the Tamil Nadu Pension Rules, by way of an amendment in
Rule 11(4) on 09.02.2010 is contrary to Rule 11(2) of the said Rules and it has
been discussed in detail in Chinnayan's case that the cut off date prescribed in
Rule 11(4) shall be invoked in the case of the respondent and others, who were
appointed prior to 01.04.2003. The said order was confirmed by a Division
Bench of this Court and also by the Hon'ble Supreme Court.
12.The learned Counsel would further submit that the Government in
G.O.Ms.No.259, Municipal Administration and Water Supply Department dated
17.06.2016 calculated 50% of the services of the employees, who were
absorbed subsequent to 01.04.2003 and he also referred to the following
judgments in support of his case:
i.The Government of Tamil Nadu Vs Ayyavoo and another,
[S.L.P(Civil) Nos.14838 and 14839 of 2012, dated 10.05.2012]
ii.The Government of Tamil Nadu Vs Palraj [Review Petition (c) No.
1418 of 2013, dated 13621 of 2012]
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iii.The State and six others Vs. R.Kesavan [W.A.(MD)No.1026 of
2015, dated 30.09.2015]
iv.M.Elumalai Vs The State and three others, [W.P.Nos.3487 to 3491
of 2016, dated 29.01.2016]
v.The State and four others Vs. S.Thillai Govidan [W.A.No.1733 of
2017, dated 13.02.2018]
13.This Court has paid its anxious consideration to the rival
submissions and perused the materials available on record.
14.The respondents / writ petitioners were appointed as Fitter
Assistant on daily wage basis on various dates after 01.04.1993. Their services
were regularised and they were brought under regular time scale of pay after
01.04.2003 vide proceedings Na.Ka.No.V4/13425/20008, dated 28.11.2008 by
the second respondent and subsequently were posted as Office Assistants.
The respondents were in regular employment from the year 2003, that too after
the crucial date of 01.04.2003.
15.Rule 11(2) was amended vide G.O.Ms.No.41 Finance (Pension)
Department dated 09.02.2010 that for calculating half of the services paid from
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contingencies shall be allowed to continue towards qualifying service for
pension along with regular services, provided the services shall be in a job
involving whole time employment and that services ought to have been brought
under regular services before 01.04.2003. A Division Bench of this Court in a
similar issue in State Vs Palanikani and others in W.A(MD)No. 587 of 2014,
dated 03.12.2014 held that by conjoint reading of G.O.Ms. No. 408 Finance
Department dated 25.08.2009, (ii) G.O. Ms. No. 6 Social Welfare and Nutritious
Meal Programme Department dated 06.01.2010, (iii) G.O. Ms. No. 34 Social
Welfare Department dated 14.03.2013, the respondents thereon are not entitled
of the benefit of counting 50% of service rendered by them under Noon Meal
Programme.
16.In the decisions referred to by the Respondents / Petitioners in
P. Chinniyan's case and in the writ appeal filed as against the same by the
Department in W.A (MD) No. 51 of 2018 and batch cases, this Court adjudged
the issue in favour of Plot Watchers in the Forest Department and directed to
count 50 % of their services before the year 2003.
17.In view of the contradictory decisions as above, the issue was
referred to a Full Bench. On reference, the Hon'ble Full Bench of this Court in
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W.A.No. 158 of 2016 and batch cases dated 03.12.2019 has laid down the
dictum that those of the Government servants who were appointed on daily
wage basis, consolidated and in non provincialised service and who were
absorbed in regular service after 01.04.2003 will not be entitled to count half of
their past services for the purpose of determination of qualifying service past
services for the purpose of pensionary purposes. The Hon'ble Full Bench has
also given answer to earlier order passed in this connection, as follows;-
37. Rule 11 (4) of the Tamil Nadu Pension Rules, 1978
allows a Government employee / servant appointed in a cadre post
before 01.04.2003 as per the Rules whether in temporary or
permanent capacity to include 50% of the service rendered in (i)
provincialised services; (ii) Consolidated pay; (iii) honorarium; or
(iv) daily wage basis along with regular service subject to
conditions stipulated therein.
38. For instance if a government employee/servant was
appointed and absorbed between the cut off dates i.e. 01.01.1961
and 01.04.2003, then he/she will be entitled to include half of the
service rendered under the State Government in (i) non
provincialised services; (ii) Consolidated pay; (iii) honorarium; or
(iv) daily wage basis into his/her services for determination of
qualifying service. 39. On the other hand, if a Government
employee / servant was not absorbed between the aforesaid cut off
dates, he/she will not be entitled to include half of the service
rendered under the State Government in (i) non provincialised
services; (ii) Consolidated pay; (iii) honorarium; or (iv) daily
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wage basis into his/her services even though such person may be
entitled to Government Pension under the Rule if he/she was
appointed in a cadre post on or before 01.04.2003 but was
absorbed after the said date.
40. For example, if a person is appointed prior to
01.04.2003 in a non provincialised service or on consolidated pay
or on honorarium or daily wage basis and later to a cadre post on
temporary basis under Rule 10 (a) (i) of The Tamil Nadu State and
Subordinate Service Rules before 01.04.2003 and such service is
regularised after 01/04/2003, such Government employee is
eligible for Government Pension under the Tamil Nadu Pension
Rules but at the same time would not be eligible to include half of
services rendered in such capacity viz., i) Non provincialised
Services ii) Consolidated pay; iii) honorarium; or iv) daily wage
basis to his regular service.
41. Thus, a government servant who may have been
appointed before the cut off date of 31.03.2003 may be entitled to
government pension if he satisfies the requirement of qualifying
service in Rule 3(o) of the Tamil Nadu Pension Rules, 1978.
However, such a person will not be entitled to add half of the past
service held in any one of the four capacity mentioned above prior
to 01.04.2003 since his regularisation is subsequent to the cut off
date. Therefore, only those who were appointed prior to
01.04.2003 whether as temporary appointment but in accordance
with Rule 10 (a) (i) alone will be entitled to get pension.
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42. The cut off date i.e. on or after 01.04.2003 in proviso to
Rule 2 of the Tamil Nadu Pension Rules, 1978 will not perse bar a
person from getting pension if such a person had joined the service
in accordance with the provisions of Tamil Nadu State and
Subordinate Service Rules i.e in the cadre whether on temporary
or permanent basis. Services rendered before the cut off date of
01.04.2003, can be added to the regular service only if the service
was regularised before the said date for determining the qualifying
service. Therefore, in our opinion, it would be appropriate to say
that Rule 11 (4) gives the meaning of qualifying service rather than
giving significance to cut off date. Therefore, it is clear that only if
the appointment is in accordance with the Rules and such
appointment is prior to 01.04.2003, 50% of the past service can be
added along with the regular service.
43. The learned counsel appearing for the writ petitioners
placed reliance on several orders passed by the Government, in
compliance with the various directions issued by this Court
directing the State or instrumentalities of the States to count half of
the service of the persons similarly placed like the writ petitioners
along with their regular service, even if the service of those
persons were regularised after 01.04.2003. It is no doubt true that
the Government passed several orders and extended the benefit of
counting half of the service rendered in casual or daily wage
employment along with the regular service in which the individual
was appointed after 01.04.2003. It is also brought to the notice of
this Court that this Court issued Mandamus at the instance of the
daily wage employees to consider their claim for counting half of
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the service rendered on daily wage basis. In some cases, when
such directions issued by this Court have not been complied with,
contempt proceedings have been initiated. Pursuant to initiation of
contempt proceedings, the service of the individual rendered on
daily wage basis was ordered to be counted. In some cases, the
Government or instrumentality of the Government rejected such
claim and it was challenged by individual daily wage employee
purportedly by citing the cases in which half of the service was
ordered to be counted based on the contempt proceedings initiated
before this Court. This is how, multiple number of orders came to
be passed by this Court. Thus, the orders passed by this Court
cannot be construed as a binding precedent. In this context, the
learned Advocate General placed reliance on the decision of Col.
(Retd). B.J. Akkara case mentioned supra, wherein it was held that
merely because the State Government did not file appeal against
certain judgment of the High Court, it cannot operate as a bar for
the State to question similar order passed by the High Court. The
relevant portion of the decision reads as follows:
25. A similar contention was
considered by this Court in State of Maharashtra v.
Digambar [(1995) 4 SCC 683] . This Court held: (SCC p.
691, para 16) Sometimes, as it was stated on behalf of the
State, the State Government may not choose to file appeals
against certain judgments of the High Court rendered in
writ petitions when they are considered as stray cases and
not worthwhile invoking the discretionary jurisdiction of
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this Court under Article 136 of the Constitution, for
seeking redressal therefor. At other times, it is also possible
for the State, not to file appeals before this Court in some
matters on account of improper advice or negligence or
improper conduct of officers concerned. It is further
possible, that even where SLPs are filed by the State
against judgments of the High Court, such SLPs may not be
entertained by this Court in exercise of its discretionary
jurisdiction under Article 136 of the Constitution either
because they are considered as individual cases or because
they are considered as cases not involving stakes which
may adversely affect the interest of the State. Therefore, the
circumstance of the non-filing of the appeals by the State in
some similar matters or the rejection of some SLPs in
limine by this Court in some other similar matters by itself,
in our view, cannot be held as a bar against the State in
filing an SLP or SLPs in other similar matter(s) where it is
considered on behalf of the State that non filing of such
SLP or SLPs and pursuing them is likely to seriously
jeopardise the interest of the State or public interest.
26. The said observations apply to this case. A
particular judgment of the High Court may not be
challenged by the State where the financial repercussions
are negligible or where the appeal is barred by limitation.
It may also not be challenged due to negligence or
oversight of the dealing officers or on account of wrong
legal advice, or on account of the non comprehension of
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the seriousness or magnitude of the issue involved.
However, when similar matters subsequently crop up and
the magnitude of the financial implications is realised, the
State is not prevented or barred from challenging the
subsequent decisions or resisting subsequent writ petitions,
even though judgment in a case involving similar issue was
allowed to reach finality in the case of others. Of course,
the position would be viewed differently, if petitioners
plead and prove that the State had adopted a “pick and
choose” method only to exclude petitioners on account of
mala fides or ulterior motives. Be that as it may. On the
facts and circumstances, neither the principle of res
judicata nor the principle of estoppel is attracted. The
administrative law principles of legitimate expectation or
fairness in action are also not attracted. Therefore, the fact
that in some cases the validity of the circular dated
29126;10126/1999 (corresponding to the Defence Ministry
circular dated 11126;9126/2001) has been upheld and that
decision has attained finality will not come in the way of
the State defending or enforcing its circular dated
11.12.;2001.
44. The aforesaid Judgment of the Honourable Supreme
Court would squarely apply to this case. Merely because this Court
has passed multiple number of orders in favour of some of the
similarly placed persons like the writ petitioners, it will not
operate as resjudicata or it will preclude the State Government
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from questioning those orders in a parallel or similar proceedings.
In such circumstances, we are of the view that the orders, hitherto
passed by this Court, both single Bench or the Division Bench will
not operate as a bar for maintaining these writ appeals or writ
petitions or those orders will not be considered as the one which
laid down any binding precedent to be followed in other cases. An
order, which was not passed in accordance with the statutory
provisions, need not be followed by the Court at the instance of
similarly placed persons.
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 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.
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(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 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.”
18.In view of the orders of the Hon'ble Full Bench of this court,
the respondents are not entitled to have the relief of calculating 50% of their
services rendered by them on daily wage basis from the year 1993 to 2003,
for the purpose of pension as they were absorbed in regular services after
01.04.2003 and accordingly, the writ appeals are allowed and the writ petitions
are dismissed. No costs.
[N.K.K.,J.] [B.P., J.]
20.07.2021
Index : Yes / No
dsk
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W.A(MD)No.979 of 2020
To
1.The Secretary to Government,
Rural Development and Panchayat Raj Department,
Secretariat, Chennai -600 009.
2.The District Collector,
Ramanathapuram District,
Ramanathapuram.
3.The Panchayat Union Commissioner,
Thiruvadanai, Thiruvadanai Taluk,
Ramanathapuram District.
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W.A(MD)No.979 of 2020
N.KIRUBAKARAN, J
AND
B.PUGALENDHI, J.
dsk
W.A(MD)No.979 of 2020
20.07.2021
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