Madras High Court
K.Kannan vs The Government Of Tamil Nadu on 8 August, 2022
WP No.20436 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08-08-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.20436 of 2014
K.Kannan .. Petitioner
vs.
1.The Government of Tamil Nadu,
Represented by its Secretary,
Transport Department,
Fort St. George,
Chennai – 9.
2.Tamil Nadu State Transport Corporation
(Villupuram) Ltd.,
Vazhuthareddy,
Villupuram. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Declaration, declaring that the action of
the respondents in refusing to count the petitioner temporary service from
07.12.1971 to 31.12.1972 along with his regular service from 01.01.1973 to
1/18
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31.03.1982 for calculating his qualifying pensionable service and thereby
rejecting his claim for pension on the ground that the petitioner did not
complete 10 years of qualifying service as illegal and consequently direct the
respondents to count the petitioner service from the date of his initial
appointment to calculate his qualifying pensionable service and to pay the
petitioner pension with effect from 01.01.1988 with all arrears and
consequential benefits, together with interest at the rate of 12% per annum
and award cost.
For Petitioner : Mr.V.Ajoy Khose
For Respondent-1 : Mr.S.Prabhakaran,
Government Advocate.
For Respondent-2 : Ms.S.Pavithra
ORDER
The writ of declaration has been filed to declare the action of the
respondents declining the claim of the writ petitioner to count the temporary
services from 07.12.1971 to 31.12.1972 along with his regular services from
01.01.1973 to 31.03.1982 for calculating the qualifying pensionable service is
null and void.
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2. The petitioner joined the services of the erstwhile Tamil Nadu
Transport Corporation Department as Driver on 07.12.1971. The petitioner
was initially appointed as daily wage employee, despite the fact that the post
of Driver was permanent. The writ petitioner was sponsored through the
District Employment Exchange and accordingly appointed. On completion of
240 days of service as Driver, he was made as permanent employee and
brought under the time scale of pay with effect from 01.01.1973.
3. The Government issued G.O.Ms.No.378, dated 10.04.1975
stating that the absorbed employees into the newly formed Transport
Corporations would be entitled for pension based on the services rendered by
them in the State Transport Department. The petitioner was sent on
deputation initially to the newly formed Thanthai Periyar Transport
Corporation and he was posted at Thiruvannamalai Depot. There was a cut
off date dispute regarding the absorption in the newly formed Transport
Corporations and the issues were settled by the Hon'ble Supreme Court of
India.
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4. The Apex Court in its judgment in the case of Government of
Tamil Nadu vs. M.Ananchu Asari [(2003) 10 SCC 503] held that the
Government is bound to pay pension based on the assurance given by them in
G.O.Ms.No.378. The Hon'ble Supreme Court itself fixed the cut off date for
absorption as 01.04.1982. However, the monetary benefits were directed to
be granted from 01.01.1988. The Review Petition filed by the Government of
Tamil Nadu against the said order, was dismissed by the Hon'ble Supreme
Court.
5. Thereafter, the Government of Tamil Nadu issued
G.O.Ms.No.42, Transport Department, dated 27.05.2005, implementing the
orders of the Supreme Court of India. Based on the said Government Order,
the petitioner submitted an application for payment of pension with all
relevant documents. However, the second respondent informed the writ
petitioner that he had not completed 10 years of minimum qualifying services
for the purpose of grant of monthly pension. The petitioner submitted a
representation pointing out that the petitioner is eligible for counting of 50%
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WP No.20436 of 2014
of the daily rated services for the purpose of reckoning the qualifying services
for grant of pension. However, the second respondent not considered the
same.
6. The petitioner on medical grounds voluntarily retired from
service in the year 1992. The claim of the writ petitioner was rejected on the
ground that the amended Rule 11(4) of the Tamil Nadu Pension Rules, 1978
for counting of 50% of the daily wage services, cannot be granted. Thus, the
petitioner is constrained to move the present writ petition.
7. The learned counsel for the petitioner mainly contended that
the issue regarding the cut off date and grant of pension under the Tamil Nadu
Pension Rules, 1978 was settled by the Supreme Court of India in its
judgment dated 01.02.2005 and the Review Application filed by the
Government of Tamil Nadu was also dismissed thereafter. Thus, the
Government of Tamil Nadu implemented the orders of the Supreme Court in
G.O.Ms.No.42, Transport Department, dated 27.05.2005 and based on the
said Government Order, the petitioner submitted an application to grant
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pension under the Tamil Nadu Pension Rules, 1978 with reference to the
services rendered by him in the erstwhile Tamil Nadu State Transport
Department.
8. The learned counsel for the writ petitioner relied on the
judgment of the Supreme Court of India in the case of M.L.Patil (Dead)
through LRs vs. State of Goa and Another [2022 SCC OnLine SC 685].
The issue dealt with by the Apex Court, in the case cited supra, was with
reference to the date of superannuation whether it is 58 or 60 years. The High
Court has refused arrears of pension and has observed that the pension at the
revised rates will become payable only from 1st of January, 2020. Challenging
the said order, the appeal was filed before the Apex Court.
9. However, in the present case, the facts and circumstances are
entirely different and distinct. The very relief, as such, sought for in the
present writ petition is to count the temporary services of the writ petitioner
from 07.12.1971 to 31.12.1972 along with the regular services. Therefore, the
judgment cited by the learned counsel for the petitioner is untenable as the
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facts are entirely different.
10. The representation of the writ petitioner was not considered
initially on the ground that he has not completed the minimum qualifying
services of 10 years. Again the petitioner approached the Authorities for
counting 50% of the services as daily rated employee and if those services are
taken into consideration, then the petitioner would be eligible for pension
under the Tamil Nadu Pension Rules. The second respondent informed the
petitioner that he is not eligible to avail the benefit of G.O.Ms.No.408,
Finance Department, dated 25.08.2008 for the purpose of counting 50% of
the services. Thus the petitioner approached this Court.
11. The respondents have objected the contentions raised on
behalf of the petitioner by stating that the petitioner joined as a Driver on
07.12.1971 and his services were regularised on 01.01.1973. He was
voluntarily retired from service on 22.08.1992. The details of the petitioner's
service in the erstwhile Transport Department and the Corporation are set out
as under:-
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The total length of the petitioner's service specifically indicating
the breakup details with regard to non-qualifying service and net qualifying
service is as follow:-
D M Y
Cut off date as per G.O.Ms.No.42 dated
27.05.2005 01.04.1982
Date of absorption 01.01.1973
Cut off date 31.03.1982
--------------------------
Non-qualifying days 30.02.09
11.00.00
--------------------------
19.02.09
===============
12. Consequent to the formation of the various Transport
Corporations, the erstwhile Tamil Nadu Transport Department employees
were absorbed permanently in Transport Corporation with effect from
01.05.1975 / 16.01.1975. In G.O.Ms.No.1028, Transport Department, dated
23.09.1985, orders were passed on the issues relating to Pension, Gratuity,
Family Pension, Leave etc. It has also been ordered therein that the employee
absorbed in State Transport Undertakings will cease to be a Government
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Servant and therefore, Government liability for Family Pension will also
cease.
13. The petitioner was joined as Driver on daily paid basis on
07.02.1971 in Tamil Nadu State Transport Department and absorbed as
permanent employee. On 01.01.1973, he was transferred permanently in the
then Thanthai Periyar Transport Corporation Ltd., now called Tamil Nadu
State Transport Corporation (Villupuram) Ltd., Villupuram. The petitioner
had been settled with all benefits under Voluntary Retirement Scheme.
14. As per G.O.Ms.No.378, Finance (F.R) Department, dated
18.04.1975, the petitioner is not eligible to get Tamil Nadu State Transport
Department pension, since he had not rendered more than 10 years of service
in the Tamil Nadu State Transport Department, at the time of his permanent
absorption in State Transport Undertakings on 16.01.1975 to earn pension.
There was no such Scheme of Pension in State Transport Undertakings. Later
as per the orders of the Hon'ble Supreme Court of India, the Tamil Nadu
Government issued G.O.Ms.No.42, Transport (RW) Department, dated
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27.05.2005 by extending the pensionary benefits to the erstwhile Tamil Nadu
State Transport Department employees, who have put in less than 10 years of
Government Service in Tamil Nadu State Transport Department on the date
of their permanent absorption in State Transport Undertakings. As per this
Government Order, under para-5, the Government fix the cut off date as
01.04.1982 in respect of the erstwhile Tamil Nadu State Transport
Department employees, who had put in less than 10 years of Government
Service as on their permanent absorption in State Transport Undertakings
only for the limited purpose of assessing the requisite length of qualifying of
10 years to earn pension.
15. This Court is of the considered opinion that G.O.Ms.No.408,
was issued on 25.08.2008 and long before the issuance of G.O.Ms.No.408,
granting the benefit of counting of 50% of services, the petitioner was
absorbed in the newly created Transport Corporation and voluntarily retired
from service.
16. As per the judgment of the Supreme Court, the cut off date
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as per G.O.Ms.No.42, dated 27.05.2005 is 01.04.1982. As per Rule 43(2) of
the Tamil Nadu Pension Rules, one should have completed 10 years of net
qualifying services in Government as on the date of his permanent absorption
in the Transport Corporation to become eligible for pension. Therefore, it is
needless to state that the 10 years of qualifying services are to be completed
on or before the cut off date i.e., 01.04.1982. It is not in dispute between the
parties that the eligibility criteria of 10 years is contemplated under Rule
43(2) of the Tamil Nadu Pension Rules, 1978 for grant of pension. Further it
is not disputed that the cut off date of 01.04.1982 is to be taken into
consideration for the purpose of ascertaining the minimum qualifying services
of 10 years. In the case of the writ petitioner, he has completed 9 years and 2
months before the cut off date as per the details furnished in the
aforementioned paragraphs.
17. The claim of the writ petitioner is that 50% of the daily wage
services are to be taken into consideration for the purpose of calculating the
qualifying services. The said amendment to the Pension Rules was introduced
only in the year 2008 through G.O.Ms.No.408, Finance Department, dated
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25.08.2008. As far as the petitioner is concerned, the said Government Order
cannot be applied in view of the fact that he was absorbed in the Transport
Corporations long before the issuance of the Government Order in
G.O.Ms.No.408 and the issues relating to the cut off date and reckoning the
qualifying services were settled by the Supreme Court of India in its judgment
dated 01.02.2005 itself. Therefore, the facts as on the date of the judgment of
the Supreme Court and with reference to the implementation order of the
Government Order issued in G.O.Ms.No.42, Transport Department, dated
27.05.2005, are to be considered. The subsequent amendments granting some
benefits to the other Government employees, cannot be extended in respect of
the issues pertaining to the erstwhile Transport Department employees,
whose rights were crystallised through the judgment of the Supreme Court in
the year 2005 itself.
18. When the petitioner is not falling under the ambit of the
Tamil Nadu Pension Rules, 1978, as he had not completed 10 years of
service before the cut off date of 01.04.1982, the benefit of counting of 50%
services, which was issued by way of amending the rule in the year 2008,
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cannot be applied in respect of employees of the erstwhile Transport
Department with reference to the Government Order issued in
G.O.Ms.No.42.
19. The learned counsel for the petitioner relied on the judgment
of the Supreme Court regarding fixation of cut off date, which is not in
dispute and the Government implemented the said judgment vide
G.O.Ms.No.42, dated 27.05.2005. The learned counsel for the petitioner
further referred the judgment of the Division Bench of this Court, wherein the
scope of G.O.Ms.No.408 of the year 2008, was not considered. Therefore,
those judgments cannot be applied with reference to the claim of the writ
petitioner for counting of 50% of the daily rated services based on
G.O.Ms.No.408, dated 25.08.2008.
20. The rights of the erstwhile Transport Department employees
were crystallised even before the issuance of G.O.Ms.No.408, dated
25.08.2008. When the rights are crystallised and the Government also
implemented the Supreme Court order vide its G.O.Ms.No.42, dated
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27.05.2005, the petitioner cannot cite the subsequent amendment and seek
pension with reference to his services rendered in the erstwhile Transport
Corporation in between the years 1973 to 1992. The Rules cannot be
enforced in such a manner, which would cause greater prejudice to the State
Exchequer. In the event of expanding the amended rule in such a manner, it
will result in huge financial implications which also to be taken into
consideration.
21. The rights of the parties once crystallised with reference to
the services and the cut off date fixed by the Hon'ble Supreme Court of India,
then the same cannot be expanded by the Courts creating further financial
implications to the State Exchequer for which the employees are not eligible
otherwise in accordance with the judgment of the Supreme Court and as per
the Tamil Nadu Pension Rules in force during the relevant point of time and
also in accordance with G.O.Ms.No.42, dated 27.05.2005.
22. In view of the fact that the scope of the amendment to the
Pension Rules, which was made after crystallisation of the rights of the
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employees with reference to the Supreme Court judgment, cannot be
extended by the High Court by exercising its powers of judicial review as
such retrospective applications are to be granted only by way of a policy
decision by the Government of Tamil Nadu and in the present case, the
Government of Tamil Nadu has rejected the claim of the erstwhile Transport
Department employees through its letter No.1232/Poo.Va/Pa.Mu.
Na.Pa/2/2011 dated 19.01.2012.
23. When the Government clarified that the Government Order
issued in G.O.Ms.No.408, dated 25.08.2008, is not applicable to the
erstwhile Transport Department employees, whose rights were decided with
reference to the cut off date fixed by the Supreme Court of India i.e.,
01.04.1982, the Court cannot expand the scope of the policy, which would
result in huge financial implications. Thus, this Court is not inclined to
consider the relief, as such, sought for in the present writ petition.
24. Accordingly, the writ petition stands dismissed. However,
there shall be no order as to costs.
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Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
To
1.The Secretary,
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WP No.20436 of 2014
Government of Tamil Nadu,
Transport Department,
Fort St. George,
Chennai – 9.
2.Tamil Nadu State Transport Corporation
(Villupuram) Ltd.,
Vazhuthareddy,
Villupuram.
S.M.SUBRAMANIAM, J.
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WP No.20436 of 2014
Svn
WP 20436 of
08-08-2022
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