Madras High Court
M.Thangavelu … vs The Commissioner For Agriculture ... on 22 March, 2022
W.P. No. 27354 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2022
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 27354 of 2019
M.Thangavelu … Petitioner
-vs-
1. The Commissioner for Agriculture Production cum Secretary,
Government of Tamil Nadu,
Agricultural Department,
Fort St. George,
Chennai – 600 009.
2. The commissioner cum Director of Agriculture,
Chepauk,
Chennai – 600 005.
3. The Joint Director of Agriculture,
Salem.
4. The Assistant Director of Agriculture,
Mecheri,
Mettur Dam,
Salem District. ...
Respondents
Prayer:- Writ Petitions filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorarified Mandamus, calling for the
records on the file of the First Respondent in connected with G.O. 109, Agri.
(Vi.Ni. 4 (1)) Department dated 04.03.2016 and quash the same as far as the
service from the date of initial appointment is left out and consequently direct
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W.P. No. 27354 of 2019
the Respondents to regularize as per G.O. (Ms) No. 85, Agriculture Department
dated 02.03.1999 on par with Juniors on the light of judgment dated
26.10.2016 and modified order dated 13.04.2017 in W.P. No. 29881 of 2017
and grant monetary benefits with arrears.
For Petitioner : Mrs. T.Aananthi
For Respondents : Mrs. C.Sangamithirai,
Special Government Pleader
ORDER
Heard Mrs. T.Aananthi, Learned Counsel for the Petitioner and
Mrs. C.Sangamithirai, Learned Special Government Pleader appearing for the
Respondents and perused the materials placed on record, apart from the
pleadings of the parties.
2. The Petitioner had been temporarily engaged as Watchman on daily wage
basis from 17.08.1989 to 28.03.2016 and his service had been subsequently
regularized with effect from 28.03.2016 pursuant to G.O. Ms. No. 109,
Agriculture [VeNi4(1)] Department dated 04.03.2016 issued by the
Government of Tamil Nadu and he continued in that post till he had retired
from service on 31.06.2021 on attaining the age of superannuation. However, as
the appointment of the Petitioner in regular service was after 01.04.2003, he
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W.P. No. 27354 of 2019
had been denied pension. In that backdrop, the Writ Petition has been filed
challenging G.O. (Ms) No. 109, Agriculture [VeNi4(1)] Department dated
04.03.2016 issued by the Government of Tamil Nadu and to consequently direct
the Respondents to regularize the services of the Petitioner as per G.O. (Ms) No.
85, Agriculture Department dated 02.03.1999 on par with his juniors in the
light of judgment dated 26.10.2016 and modified order dated 13.04.2017 in
W.P. No. 29881 of 2017 and grant monetary benefits with arrears.
3. Learned Special Government Pleader appearing for the Respondents
contends that such claim made by the Petitioner cannot be granted in view of
the decision of the Division Bench of this Court in Government of Tamil Nadu
-vs- A.Packiam (Order dated 18.01.2021 in W.A. (MD) No. 1491 of 2014)
denying such relief to a person similarly placed to the Petitioner as in this case.
4. Before proceeding further, it would be necessary to extract Rule 11(4) of
the Tamil Nadu Pension Rules, 1978 (hereinafter referred to as 'the Rules' for
short), which has been introduced by way of amendment by G.O. (Ms) No. 41,
Finance (Pension) Department dated 09.02.2010, as follows:-
“Half of the service rendered under the State Government in
non-provincialised service, consolidated pay, honorarium or
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W.P. No. 27354 of 2019
daily wages basis on or after 1st January 1961 in respect of
Government employees absorbed in regular service before 1st
April 2003 shall be counted for retirement benefits along with
regular service, subject to the following conditions, namely:-
(i) Service rendered in non-provincialised service,
consolidated pay, honorarium or daily wages basis shall
be in a job involving whole time employment;
(ii) Service rendered shall be on consolidated pay,
honorarium or daily wages basis paid on monthly basis
and subsequently absorbed in regular service under the
State Government;
(iii) Service rendered in non-provincialised service,
consolidated pay, honorarium or daily wages basis shall
be followed by absorption in regular service before 1 st
April 2003 without a break.
Provided that this sub-rule is applicable to all employees
who rendered service under the State Government in non-
provincialised service, consolidated pay, honorarium or daily
wage basis on or after 1st January 1961 and absorbed in regular
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W.P. No. 27354 of 2019
service before 1st April 2003.
Provided further that wherever there was break in service
before their absorption in regular service before 1 st April 2003,
the same shall be specifically condoned by the orders of the
Head of Departments, in which the employees were regularly
absorbed and such period of break, shall not count for the
purpose of pensionary benefits.”
The Full Bench of this Court in Government of Tamil Nadu -vs-
R.Kaliyamoorthy (Order dated 03.12.2019 in W.A. Nos. 158 of 2016 etc.,
batch) has examined the question as to whether the persons who had been
appointed in regular service after 01.04.2003 would be entitled to receive
pension under the Rules and answered the same 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 the
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
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W.P. No. 27354 of 2019
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 employees/servant had also
rendered service in non-provincialised service, or on
consolidated pay or on honorarium or daily wage basis
and if such service were regularised before 01.04.2003,
half of 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 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
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W.P. No. 27354 of 2019
entitled to count half of their past service for the purpose
of determination of qualifying service for pension. ”
In view of the aforesaid legal position, the claim made by the Petitioner cannot
be countenanced.
5. At the same time, it would be relevant to point out here that Rule 82 of
the Rules provides as follows:-
“82. Power to relax:-- Where any Department of the
Government is satisfied that the operation of any of these
rules causes under hardship in any particular case, the
Department may by order for reasons to be recorded in
writing, dispense with or relax the requirements of that rule to
such extent and subject to such exceptions and conditions as it
may consider necessary for dealing with the case in a just and
equitable manner.
Provided that no such order shall be made except with
the concurrence of the Finance Department.”
While construing a similar provision contained in Rule 88 of the Central Civil
Services (Pension) Rules, 1972, the Hon'ble Supreme Court of India in Union
of India -vs- Gandiba Behera (Order dated 08.11.2019 in Civil Appeal
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W.P. No. 27354 of 2019
No. 8497 of 2019) has observed as follows:-
“25. We are also of the opinion that the authorities ought to
consider their cases for exercising the power to relax the
mandatory requirement of qualifying service under the 1972
Rules if they find the conditions contained in Rule 88 stand
fulfilled in any of these cases. We do not accept the stand of
the appellants that just because that exercise would be
prolonged, recourse to Rule 88 ought not to be taken. The said
Rules is not number specific, and if undue hardship is caused
to a large number of employees, all of their cases ought to be
considered. ...”
This would obviously mean that though the Petitioner had been absorbed in
regular service after 01.04.2003, there is nothing precluding him from seeking
relaxation of the requirements of the Rules for granting pension in the
prescribed manner before the concerned authority, who would have to examine
whether the conditions for the same have been fulfilled in this case.
6. In such circumstances, the following order is passed:-
(i) the Petitioner may make necessary representation along with supporting
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W.P. No. 27354 of 2019
documents to the concerned authority under Rule 82 of the Rules for
relaxing the relevant rules so as to entitle him for grant of pension;
(ii) if such application is made, the concerned authority shall immediately
consider the claim made by the Petitioner for relaxation of the relevant
rules for grant of pension taking into account any undue hardship that
may be suffered by him in terms of Rule 82 of the Rules;
(iii) if it is found that the Petitioner has not produced any details or supporting
documents satisfying the eligibility criteria for the benefits claimed, the
deficiencies in that regard shall be informed in writing to him requiring
the same to be furnished within a time frame of not less than 15 clear
working days;
(iv) in the event of the concerned authority not being satisfied with the
compliance of the requirements thereafter, an enquiry shall be conducted
affording full opportunity of personal hearing to the Petitioner to explain
his position in that regard and the concerned authority shall pass
reasoned orders dealing with each of the contentions raised on merits and
in accordance with law and communicate the decision taken to the
Petitioner under written acknowledgment; and
(v) if the Petitioner is found entitled to the relaxation of the relevant rules for
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W.P. No. 27354 of 2019
grant of pension as claimed, it shall be ensured that the eligible amount of
arrears of pension is paid within three months from the date of passing of
that order, apart from monthly pension for future months on the due
dates;
In the result, the Writ Petition is disposed on the aforesaid terms. No
costs.
22.03.2022
vjt
Index: Yes/No
Note: Issue order copy by 13.06.2022.
To
1. The Commissioner for Agriculture Production cum Secretary,
Government of Tamil Nadu,
Agricultural Department,
Fort St. George,
Chennai – 600 009.
2. The Commissioner cum Director of Agriculture,
Chepauk,
Chennai – 600 005.
3. The Joint Director of Agriculture,
Salem.
4. The Assistant Director of Agriculture,
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W.P. No. 27354 of 2019
Mecheri,
Mettur Dam,
Salem District.
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W.P. No. 27354 of 2019
P.D. AUDIKESAVALU, J.
vjt
W.P. No. 27354 of 2019
22.03.2022
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