Madras High Court
Unknown vs The Secretary To Government on 1 October, 2021
W.P.No.21155 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2021
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.21155 of 2021
and
W.M.P.No.22447 of 2021
(Through Video Conferencing)
1.S.Murugan
2.P.Kanthimathi
3.N.Jeyanthi
4.A.Arokia Rani
5.E.Vimala
6.S.Rajeswari
7.S.Mariammal
8.P.Packia Lakshmi
9.A.Manivannan
10.G.Selvi
11.P.Kanthimathi
12.S.Sundara Raman
13.T.Jeyaprakesh
14.M.Rajakumari
15.F.Malliga Matha
16.A.Seetha Lakshmi
17.W.Johnson
18.M.Nainar
19.D.Ganesan
20.A.Kanagavel
21.A.Kanthimathi
22.S.Kanagasabapathy
23.A.Gulzar Feroz Begam
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W.P.No.21155 of 2021
24.S.Subitha
25.M.Sankara Subramanian
26.R.Yoga Rani
27.P.Jeyanthi
28.A.Jesu
29.S.Paper Ananthan
30.C.Mary Anitha ... 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 Commissioner,
School Education Department,
DPI Campus, Chennai – 600 006.
4.The Commissioner,
H.R & C.E. Department,
Nungambakkam, Chennai – 600 034.
5.The Commissioner,
Commercial Taxes Department,
Ezhilagam, Chepauk,
Chennai – 600 005.
6.The Secretary to Government,
Transport Department,
Fort. St. George, Chennai – 600 009.
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W.P.No.21155 of 2021
7.The Inspector of Registration,
Santhome High Road,
Chennai – 600 028.
8.The Principal Accountant General Tamil Nadu,
Order of the Principal Accountant General (A & E),
Chennai, Tamil Nadu. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus, 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 : Ms.Dakshayani Reddy
For Respondents :
For R1 to R7 : Mr.L.S.M.Hasan Fizal
Government Advocate
For R8 : Mr.Vijay Shankar
ORDER
Mr.L.S.M.Hasan Fizal, learned Government Advocate takes notice
on behalf of the first to seventh respondents and Mr.Vijay Shankar,
learned counsel on behalf of the eighth respondent.
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W.P.No.21155 of 2021
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 the last decade.
3.Ultimately, the issue came up before the Hon'ble Supreme Court.
An interim order came to be passed pursuant to which Government
orders were issued by the Government fixing onerous conditions for
absorbing the petitioners. 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
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 finally settled the issue.
4.The Hon'ble Supreme Court by its order dated 28.09.1999 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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W.P.No.21155 of 2021
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
conditions and all that may be insisted upon is
that the retrenched employees of the Census
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W.P.No.21155 of 2021
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 case.
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:-
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
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W.P.No.21155 of 2021
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;-
1)The Director of Census operations, Tamil
Nadu, Chennai is requested to prepare a list of all
retrenched employees of Census 1991 categary-
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W.P.No.21155 of 2021
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.
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
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W.P.No.21155 of 2021
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 exhaused.
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
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
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W.P.No.21155 of 2021
compliance of the order. This forced some of the petitioners to approach
the Hon'ble Supreme Court once again by way of a contempt petition in
Cont.P.(C).No.433 of 2002. The Chief Secretary was summoned to
appear in the Contempt Petition in Contempt Petition (C) No.433 of
2002. The appointment order were issued on various dates after
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. Thus,
those who were appointed into Government service after 01.04.2003
became ineligible for government pension under Tamil Nadu Pension
Rules, 1978. 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 government pension under the Provisions of the Tamilnadu
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
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W.P.No.21155 of 2021
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
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
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W.P.No.21155 of 2021
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 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
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W.P.No.21155 of 2021
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 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
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W.P.No.21155 of 2021
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 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.Os., 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
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W.P.No.21155 of 2021
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 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
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W.P.No.21155 of 2021
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 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
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W.P.No.21155 of 2021
Hon'ble Supreme Court on 28.09.1999. The order 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 receipt of a copy of this order. No costs.
Consequently, connected Miscellaneous Petitions are closed.
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01.10.2021
Index: Yes/ No
Internet : Yes/No
Speaking/Non-speaking Order
jas
To
1.The Secretary to Government,
Personnel and Administrative Department,
Secretariat, Chennai.
2.The Secretary to Government,
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W.P.No.21155 of 2021
Finance Department,
Secretariat, Chennai – 9.
3.The Commissioner,
School Education Department,
DPI Campus, Chennai – 600 006.
4.The Commissioner,
H.R & C.E. Department,
Nungambakkam, Chennai – 600 034.
5.The Commissioner,
Commercial Taxes Department,
Ezhilagam, Chepauk,
Chennai – 600 005.
6.The Secretary to Government,
Transport Department,
Fort. St. George, Chennai – 600 009.
7.The Inspector of Registration,
Santhome High Road,
Chennai – 600 028.
8.The Principal Accountant General Tamil Nadu,
Order of the Principal Accountant General (A & E),
Chennai, Tamil Nadu.
C.SARAVANAN, J.
jas
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W.P.No.21155 of 2021
W.P.No.21155 of 2021
and
W.M.P.No.22447 of 2021
01.10.2021
https://www.mhc.tn.gov.in/judis
