P.Kathirvel vs The Commissioner Of Municipal ...
2022 Latest Caselaw 18209 Mad

                                                                        W.P.(MD).No. 21688 of 2019


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                         RESERVED ON : 20.12.2022

                                         DELIVERED ON : 03.01.2023

                                                    CORAM

                                  THE HONOURABLE MRS.JUSTICE S.SRIMATHY

                                          W.P.(MD).No. 21688 of 2019



                 S.Perumal (Died)

                 1.P.Kathirvel

                 2.P.Balamurugan

                 3.M.Sakkammal

                 4.A.Murugalakshmi                                            ... Petitioners

                 (P-1 to P-4 are substituted vide Court Order dated 16.12.2022 in W.M.P.
                 (MD).No.21676 of 2022 in W.P.(MD).No.21688 of 2019).

                                                       Vs
                 1.The Commissioner of Municipal Administration
                   Chepauk,
                   Chennai – 600 006.

                 2.The Municipal Commissioner,
                   Virudhunagar Municipality,
                   Virudhunagar District.                                     ... Respondents


                1/10
https://www.mhc.tn.gov.in/judis
                                                                                 W.P.(MD).No. 21688 of 2019



                 PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
                 issuance of Writ of Certiorari, to call for the records of the second respondent's
                 impugned communication in Na.Ka.No.rp1/11388/2014 dated 22.11.2018 and
                 quash the same and direct the respondents to include petitioner's name as a
                 member under the old pension scheme from the date of regularization of
                 petitioner's service w.e.f 21.12.2001 by getting appropriate relaxation and to
                 provide him pension and all service benefits by considering petitioner's
                 representation dated 24.06.2017 within the period stipulated by this Court.

                                           For Petitioners    : Mr.A.Hajamohideen

                                           For R-1            : Mr.R.Suresh Kumar,
                                                                Additional Government Pleader.

                                           For R-2            : Mr.M.Muthu Geethayan

                                                              *****

                                                             ORDER

This Writ Petition is filed for Writ of Certiorari to quash the impugned

order dated 22.11.2018 with a consequential relief to grant Old Pension Scheme

by fixing the date of regularization with effect from 21.12.2001 by getting

appropriate relaxation and to grant pension and all service benefits by considering

the petitioner's representation dated 24.06.2017.

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

2. The brief facts as stated in the affidavit are that the petitioner was

originally appointed as temporary Gang Mazdoor in the second respondent office

in the year 1974 in Engineering Section and thereafter, on 24.03.1975, the

petitioner was appointed as Gang Mazdoor on permanent basis. As per

G.O.Ms.No.125 issued by Municipal Administration and Water Supply

Department dated 27.05.1999, the petitioner was granted time scale of pay with

effect from 21.12.2001. Subsequently, the petitioner's service was regularized

with effect from 21.12.2002 vide communication in Na.Ka.No.7038/09 dated

15.12.2009 and his scale of pay is Rs.2550-55-2660-60-3200 from 21.12.2002.

Even though the petitioner's service was regularized with effect from 21.12.2002,

the same was not recorded in the service register and the respondents deducted

Rs.20/- as family fund before regularization of service and Rs.40/- deducted as

family fund after regularization of service and the respondent has deducted Rs.

1,200/- as contributory pension. The contention of the petitioner is that he is

entitled to include his name in the Old Pension Schemes, since the petitioner's

service was regularized before 01.04.2003 and the petitioner is also ready to pay

the contribution for the pension. Inspite of repeated representations, there was no

relief to the petitioner. Thereafter, a detailed representation dated 24.06.2017 was

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

submitted requesting the respondents to include his name in the Old Pension

Scheme and to grant the pensionary benefits. Since there was no response, the

petitioner filed W.P.(MD).No.13859 of 2017 and this Court vide order dated

05.03.2018 directed the respondent to consider and pass orders. On receipt of the

copy of the order, the petitioner submitted the letter dated 17.03.2018 along with

the order copy. Having received the same, the second respondent had forwarded

with the necessary recommendations to include the name of the petitioner in Old

Pension Scheme to the first respondent. Since the respondents have not complied

the order, the petitioner filed Contempt Petition in Cont.P.(MD).No.1388 of 2018.

Subsequently, the respondents passed the impugned order dated 22.11.2018

denying the claim of the petitioner. Aggrieved over the same, the present Writ

Petition is filed.

3. The second respondent has filed a counter stating that the Writ

Petition is not maintainable, since the writ petitioner's service was regularized by

the second respondent only on 15.12.2009 in Na.Ka.No.7038/2009. Since the

regularization is after 01.04.2003, based on the Hon'ble Full Bench judgment

passed in W.A.No.158 of 2016 dated 03.12.2019 in the case of the Government of

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

Tamil Nadu and others Vs. Kaliyamoorthy reported in 2019 (6) CTC 705, the

petitioner is not entitled to Old Pension Scheme. The petitioner filed Writ

Petition in W.P.(MD).No.13859 of 2017 and this Court has directed the

respondents to consider and pass orders. In the aforesaid Writ Petition, the

Hon'ble Court has negatived the claim of the petitioner for retrospective

regularization, since the initial appointment of the writ petitioner was only as a

daily wage employee and not in accordance with recruitment rules. However, as

per the amended rule of Rule 11 of the Tamil Nadu Pension Rules, direct the writ

petitioner to submit a fresh representation in respect of the calculation of 50% of

the temporary service rendered by him prior to the date of regularization. The

second respondent submitted a proposal to the higher authorities to consider the

claim of the petitioner and the same was negatived by the authorities on

14.11.2018. Therefore, the second respondent passed consequential order

rejecting the claim of the petitioner vide order dated 22.11.2018, which was put to

challenge in this Writ Petition. The issue was finally settled by the Hon'ble Full

Bench where the persons if regularized after 01.04.2003 is not entitled to either

for 50% of the previous service or for full pension. In the earlier Writ Petition

filed by the petitioner, the Hon'ble Court has only directed the writ petitioner to

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

submit a fresh representation in respect of calculation of 50% temporary service

and has not granted any relief to the writ petitioner to include his name under Old

Pension Scheme. Since the petitioner's regularization is after 01.04.2003, the

petitioner is not entitled to and prayed to dismiss this Writ Petition.

4. Heard Mr.A.Hajamohideen, learned counsel for the petitioner and

Mr.R.Suresh Kumar, learned Additional Government Pleader for the first

respondent and Mr.M.Muthu Geethayan, learned counsel for the second

respondent.

5. The learned counsel appearing for the respondents submitted that the

issue of granting pension was considered by this Court in W.P.(MD).

No.8662 of 2016 filed by one M. Marimuthu and has rejected the same by

following the Hon'ble Full Bench order. Therefore, prayed to reject the present

case also. In the said case of M. Marimuthu, the time scale of pay was granted

from 01.09.2006 and also regularized from 01.09.2006. Hence, this Court held

that the regularizing is from 01.09.2006 onwards and the writ petitioner is not

entitled to pension.

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

6. In the present case, the writ petitioner S.Perumal even though was

appointed in the year 1974, subsequently appointed in a permanent basis in the

year 1975, he was not regularized. The G.O.Ms.No.125 dated 27.05.1999 was

issued to regularize all daily wage employees / NMR who are working in the

Municipality. The category of persons who are covered under the said

Government Order is all NMRs excluding Sweeper, Scavenger, Street Light

Maintenance, Water Supply etc., The petitioner is not coming under the excluded

category but coming under others categories, hence the benefits of G.O.Ms.No.

125 dated 27.05.1999 is applicable to the petitioner. The G.O.Ms.No. 125 dated

27.05.1999 was issued directing all the Municipalities to submit a list of NMRs

working in the said Municipality in order to regularize their service. The

petitioner's name was also considered and he was in the list, that is why the

respondents have granted time scale of pay of 2550-55-2660-60-3200 with effect

from 21.12.2002 vide order vide order dated 15.12.2009 in Na.Ka.No.7038/2009

and also submitted the proposals to the Government for regularization. The

petitioner was granted time scale of pay with effect from 21.12.2002 and this fact

is admitted by the respondents in the impugned order. Even according to the

second respondent while recommending the case of the petitioner vide

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

communication dated 01.08.2018 has stated that the petitioner was granted time

scale of pay from 21.12.2002 onwards. In such circumstances, when the petitioner

was brought under time scale of pay from 21.12.2002 i.e. prior to 01.04.2003

itself, then the petitioner ought to be considered for regularizing from 21.12.2002,

since it is only formal approval is necessary from the first respondent. Therefore,

this Court is of the considered opinion, since the petitioner was brought under

time scale of pay from 21.12.2002 i.e. prior to 01.04.2003 itself, the petitioner's

name ought to be considered for granting 50% of the past service as per Rule 11A

of the Tamil Nadu Pension Rules.

7. The impugned order is quashed. The respondents are directed to

calculate the 50% of the past service prior to 21.12.2002 and from 21.12.2002 till

the date of superannuation, the petitioner is entitled for pensionable service. With

these two services, the petitioner shall be granted pension. The respondents shall

implement this order within a period of twelve (12) weeks from the date of receipt

of a copy of this order.

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

8. In view of the above, this Writ Petition is allowed. There shall be no

order as to costs.

03.01.2023

Index : Yes / No Internet : Yes

Nsr

To

1.The Commissioner of Municipal Administration Chepauk, Chennai – 600 006.

2.The Municipal Commissioner, Virudhunagar Municipality, Virudhunagar District.

https://www.mhc.tn.gov.in/judis W.P.(MD).No. 21688 of 2019

S.SRIMATHY, J

Nsr

Pre-delivery Order made in W.P.(MD).No. 21688 of 2019

03.01.2023

https://www.mhc.tn.gov.in/judis