Madras High Court
State Of Tamil Nadu vs P. Arunachalam on 23 March, 2022
W.A.Nos.714 to 716 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A. Nos.714 to 716 of 2014
1. State of Tamil Nadu,
Represented by the Secretary to Government,
Social Welfare & Nutritious to Government,
Meal Scheme ( Sa.U.Thi.2) Department,
Secretariat, Chennai – 9.
2. The Principal Accountant General,
O/o The Principal Accountant General,
( Accounts & Entitlements)
361, Anna Salai, Chennai – 18.
3. The Director of School Education,
College Road, Chennai -6 ...Appellants
Vs.
1. P. Arunachalam ... Respondent in W.A.714 of 2014
2.V. Chandra Bai ... Respondent in W.A.715 of 2014
3. V. Lakshmi ... Respondent in W.A.716 of 2014
Prayer in W.A.714 of 2014:Writ appeal is filed under clause 15 of the
Letter Patent praying to set aside the order dated 11.09.2013 in
W.P.(MD).No.14244 of 2013 and allow this writ appeal.
1
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Prayer in W.A.715 of 2014:Writ appeal is filed under clause 15 of the
Letter Patent praying to set aside the order dated 11.09.2013 in
W.P.(MD).No.14245 of 2013 and allow this writ appeal.
Prayer in W.A.716 of 2014:Writ appeal is filed under clause 15 of the
Letter Patent praying to set aside the order dated 11.09.2013 in
W.P.(MD).No.14246 of 2013 and allow this writ appeal.
For Appellant : Mr.Haja Naziruddin
in all W.As. (Additional Advocate General)
Assisted by Mrs.Maythreye Chandru
(Special Government Pleader)
For Respondent-1 : Mr.R.Singaravelan (Senior counsel)
in all W.As. for Mrs.M.Srividhya
For Respondent 2 : Given up (SR-stage)
in all W.As.
*****
COMMON JUDGMENT
These present Writ Appeals are filed by the State challenging the
order of the Learned Single Judge, insofar as, it has directed the respondents
to consider the representation of the respondents on the basis of the G.O.
Ms. No. 6, Social Welfare and Nutritious Meals Programme Department
dated 06.01.2010, wherein 50% of the respondent’s service as Noon Meal
Organisers has to be taken for the purpose of pensionary benefits.
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2. The above direction of the Learned Single Judge is challenged by
the State on the premise that in terms of Rule 11(4) of the Tamil Nadu
Pension Rules, 1978, read with G.O.Ms.No. 408, Finance( Pension )
Department dated 25.08.2009, 50% of the services rendered in non-
provincialised services, consolidated pay, honorarium or daily wage basis
would be counted for those employees/ persons absorbed into regular
service prior to 01.04.2003.
3. Admittedly, the respondents were not absorbed into regular service
prior to 01.04.2003 and thus in terms of Rule 11(4) of the Tamil Nadu
Pension Rules, 1978, they may not be entitled for the services rendered prior
to being absorbed into regular services from non provincialised services,
consolidated pay, honorarium or daily wage basis being considered for
pensionary benefits.
4. It is submitted by the appellants that reliance placed by the Learned
Single Judge on G.O.Ms.No.6 dated 06.01.2010 while issuing above
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directions was erroneous inasmuch as G.O.Ms.No.6 would be applicable
according to the appellants only to those employees / persons absorbed into
regular service prior to 01.04.2003 and the respondents having been
absorbed into regular service after 01.04.2003 cannot claim benefits under
the G.O.Ms.No.6.
5. The counsel for the Respondents would submit at the outset that
the question that may arise in these writ petitions is “Whether half of the
past service rendered by Government Servants whose appointments were
regularised after 01.04.2003 can be counted for the purpose of grant of
pension under the provisions of the Tamil Nadu Pension Rules, 1978 in the
light of the amendments to the aforesaid rules vide G.O.Ms. No. 259,
Finance (Pension) Department dated 06.08.2003 and G.O. Ms No. 41,
Finance ( Pension) Department dated 08.02.2010.?”
6. He would further submit that the above question may require
reference to Larger Bench inasmuch as a Full Bench of this Court in W.A.
158 of 2016 had on reference examined the above question, however the
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Hon'ble Full Bench has not considered G.O.Ms.No.6 dated 06.01.2010 and
the decision of the Hon'ble Supreme Court in Prem Singh V State of Uttar
Pradesh and others reported in (2019) 10 SCC 516, which would have
material bearing on the issue.
7. The reference to the Full Bench came to be made in view of
conflicting decisions made by the Division Benches of this Court in W.A.(
Md) No. 587,605,606 and 1024 of 2014 wherein a Division Bench of this
Hon’ble Court held that the persons who were absorbed and or regularised
to service after 01.04.2003 were not entitled to count half of the past service
rendered by them for the purpose of conferment of pensionary benefits
along with the service rendered by them after regularisation whereas in
W.A( MD).No. 760 of 2013, another Division Bench of this Hon’ble Court
held that persons whose service came to be regularised after 01.04.2003
were entitled and / or eligible to count half of the services rendered by them
on daily wages prior to their regularisation, for the purpose of conferment of
pensionary benefits.
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8. The Hon’ble Full Bench after referring to Sub Rule (4) to Rule 11
of Tamil Nadu Pension Rules, 1978 introduced vide G.O.Ms.No.41,
Finance ( Pension) Department dated 09.02.2010 and on consideration of
the scope of Rule 11(4) read with G.O.Ms.No.408 dated 25.08.2009
concluded as under:-
a) The employees/ persons appointed on or after 01.04.2003 would be
entitled to New Pension Scheme vis, the Contributory Pension Scheme
b) Government servants appointed prior to 01.04.2003, whether
temporary or permanent basis in terms of Rule 10(a)(1) of Tamil Nadu State
and Subordinate Service Rules would be entitled to get pension as under the
First Pension Scheme ( Old Pension Scheme).
c) A Government employee/ servant who had rendered service in the
following schemes such as Non provincialised services, consolidated pay,
honorarium or daily wages and if such services were regularised before
01.04.2003, half of the service would be considered for conferment of
pension benefits.
d) Government employees/ servants appointed in Non provincialised
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services, consolidated pay, honorarium or daily wages before the cut-off
date viz., 01.04.2003 and later appointed under Rule 10(a)(1) of the Rules
and absorbed into regular service would not be entitled to count any of their
past services for the purpose of determination of qualifying service of
pension.
e) Similarly, the government servants would have rendered service
before 01.01.1961 and absorbed after 01.04.2003 would not be entitled to
pension.
9. Against the above background, it is submitted by the learned
counsel for the respondents that the order of the Learned Full Bench may
require a reconsideration in view of the following grounds.
a) It fails to take into account G.O.Ms.No.6 and thus the Full Bench
is possibly per incuriam.
b) Secondly, it is contrary to the law laid down by the Honorable
Supreme Court in the case of Prem Singh V State of Uttar Pradesh and
others reported in (2019) 10 Supreme Court Cases 516.
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10. It is submitted by the learned counsel of the respondents that
Government Servants in Tamil Nadu were originally extended pensionary
benefits in terms of Tamil Nadu Pension Rules, 1978. In the budget of
2001-2002, the Government of India introduced a New Pension Scheme
based on defined contributions to those who enter Central Government
Service. Apparently, drawing inspiration from the same, the State of Tamil
Nadu had announced in the Budget Speech of 2003-2004 a New Pension
Scheme based on defined contributions for the employees of State of Tamil
Nadu who are newly recruited after 01.04.2003. Under the new
Contributory Pension Scheme, each employee has to contribute a certain
amount and Government may contribute a certain amount.
11. Amendments were made to the Tamil Nadu Pension Rules, 1978
whereby a proviso was added to Rule 2 and Sub Clause (4) to Rule 11
which reads as under:
Proviso to Rule 2 inserted vide G.O.Ms.No. 259, Finance ( Pension)
Department dated 06.08.2003:
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“ Provided that these rules shall not apply to
Government Servants appointed on or after the 1st
April 2003, to services and posts in connection with
the affairs of the State which are borne on pensionable
establishments, whether temporary or permanent”…
Section 11(4) added vide G.O.Ms.No.41, Finance ( Pension)
Department dated 09.02.2010:
"11(4): Half of the service rendered under the State
Government in non- provincialised service,
consolidated pay, honorarium or 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- provincialisedservice ,
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 wage basis
shall be followed by absorption in regular service
before 1st 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
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or after 1st January 1961 and absorbed in regular
service before 1st April 2003.
Provided further that wherever there was break in
service before their absorption in regular service
before 1st 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."
12. A reading of the above proviso to Rule 2 and sub Rule(4)to Rule
11 would suggest that there was a paradigm shift in the pension scheme post
01.04.2003 and importantly Sub Rule (4) to Rule 11 provides that half of
the service rendered under non provincialised service, consolidated
pay,honorarium or daily wages on or after 01.01.1961 in respect to
Government Employees absorbed before 01.03.2004 shall be counted for
retirement benefits along with the regular service. i.e., service after
regularisation.
13. It is further submitted by the counsel for the respondents that the
Full Bench has failed to take into account G.O.Ms.No.6 dated 06.01.2010,
whereby employees who had worked under Nutritious Meal , ICDS and
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promoted as teachers , 50% of the services rendered under the said schemes
has to be taken into consideration for the purpose of calculating pensionary
benefits the above benefit is extended without reference to the date of
regularisation, in other words in terms of G.O.Ms.No.6, 50% of the service
rendered under non-provincialised service, consolidated pay, honorariam or
daily wages ought to be taken into account even if the regularisation is after
01.04.2003. The said G.O.Ms.No.6 has a material bearing on the question
referred to the Full Bench and thus in view of the non consideration of the
same, the Full Bench may require reconsideration.
14. Full Bench - contrary to the law laid down by the Hon'ble
Supreme Court in Prem Singh case :
It is submitted that the conclusion arrived at by the Hon'ble Full
Bench while answering the reference is contrary to the law laid down by the
Hon’ble Supreme Court in the case of Prem Singh V State of Uttar
Pradesh and others reported in 2019 10 SCC 516 wherein while dealing
with the question as to whether service rendered as “work charged
employee” can be reckoned for computation of qualifying service, it was
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held that if a “ work charged employee” perform functions and his nature of
work is not quantitatively different from the regular and is required to
satisfy the efficiency test of a regular employee and the nature of work is
perennial and not temporary, then it was unfair and exploitative by taking
work for long periods and denying the benefit of such employment due to
the employee.
"10. The qualifying service is the one which is in
accordance with the provisions of Regulation 368 i.e. holding
a substantive post on a permanent establishment. The proviso
to Rule 3(8) clarify that continuous, temporary or officiating
service followed without interruption by confirmation in the
same or any other post is also included in the qualifying
service except in the case of periods of temporary and
officiating service in a non-pensionable establishment. The
service in work-charged establishment and period of service in
a post paid from contingencies shall also not count as
qualifying service.
......
28. It is apparent from the aforesaid discussion that it
would depend upon the service rules or schemes whether the
period of work-charged service has to be counted for ACP, in
case provision has been made under a particular statute, rule
or scheme, service rendered as work- charged employees can
be counted. It would depend upon the relevant provision of
which benefit is claimed. Again, this Court has emphasized
that by its very nature of employment work-charged employees
have not to continue for long, employment comes to an end
with the project.
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......
31. In the aforesaid facts and circumstances, it was
unfair on the part of the State Government and its officials to
take work from the employees on the work-charged basis. They
ought to have resorted to an appointment on regular basis. The
taking of work on the work- charged basis for long amounts to
adopting the exploitative device. Later on, though their
services have been regularized. However, the period spent by
them in the work-charged establishment has not been counted
towards the qualifying service. Thus, they have not only been
deprived of their due emoluments during the period they
served on less salary in work charged establishment but have
also been deprived of counting of the period for pensionary
benefits as if no services had been rendered by them. The State
has been benefited by the services rendered by them in the
heydays of their life on less salary in work- charged
establishment.
.....
33. The question arises whether the imposition of rider
that such service to be counted has to be rendered in-between
two spells of temporary or temporary and permanent service is
legal and proper. We find that once regularization had been
made on vacant posts, though the employee had not served
prior to that on temporary basis, considering the nature of
appointment, though it was not a regular appointment it was
made on monthly salary and thereafter in the pay scale of
work-charged establishment the efficiency bar was permitted
to be crossed. It would be highly discriminatory and irrational
because of the rider contained in Note to Rule 3(8) of 1961
Rules, not to count such service particularly, when it can be
counted, in case such service is sandwiched between two
temporary or in-between temporary and permanent services.
There is no rhyme or reason not to count the service of work-
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charged period in case it has been rendered before
regularisation. In our opinion, an impermissible classification
has been made under Rule 3(8). It would be highly unjust,
impermissible and irrational to deprive such employees benefit
of the qualifying service. Service of work-charged period
remains the same for all the employees, once it is to be counted
for one class, it has to be counted for all to prevent
discrimination. The classification cannot be done on the
irrational basis and when respondents are themselves counting
period spent in such service, it would be highly discriminatory
not to count the service on the basis of flimsy classification.
The rider put on that work-charged service should have
preceded by temporary capacity is discriminatory and
irrational and creates an impermissible classification.
34. As it would be unjust, illegal and impermissible to
make aforesaid classification to make the Rule 3(8) valid and
non discriminatory, we have to read down the provisions of
Rule 3(8) and hold that services rendered even prior to
regularisation in the capacity of work-charged employees,
contingency paid fund employees or non- pensionable
establishment shall also be counted towards the qualifying
service even if such service is not preceded by temporary or
regular appointment in a pensionable establishment.
35. In view of the note appended to Rule 3(8), which
we have read down, the provision contained in Regulation 370
of the Civil Services Regulations has to be struck down as also
the instructions contained in Para 669 of the Financial
Handbook."
15. On the strength of the above judgment, it was submitted by the
counsel for the respondent, the distinction between Rule 10 (i)(a) and
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employees under non provincialised service, consolidated pay, honorarium
or daily wages employees is irrational as it is made without bearing in mind
the following:
a) The nature of their services.
b) Whether the activity is perennial in nature,
c) Whether salaries are paid monthly or not,
d) Whether their services are quantifiable the same as that of the regular
employees.
16. The Full Bench while extending the benefit of half of the service
rendered under Non provincialised service, consolidated pay, honorarium or
daily wages if the employee/ person were regularised before 01.04.2003
results in discrimination inasmuch it results in:
(i) Disparity in treatment between temporary appointments under
Rule 10(i)(a) and those employed in non provincialised services,
consolidated pay, honorarium or daily wages.
(ii) Secondly, it results in discrimination between those employed in
non provincialised services, consolidated pay, honorarium or daily wages
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absorbed into regular service before 01.04.2003 and after 01.04.2003.
17. It is further submitted by the counsel for the respondents that the
Full Bench appears to suggest that employees who has rendered services
under Non-provincialised service, consolidated pay, honorarium or daily
wages were to be extended the benefit of half the service rendered under
those schemes for the purpose of calculating the pensionary benefits only
when regularised before 01.04.2003. It is submitted that once the service
rendered as Non-provincialised service, consolidated pay, honorarium or
daily wages is held eligible for being counted for reckoning pension, the
denial of the same on the basis of date of regularisation before or after
01.04.2003 produces discriminatory results.
The following illustration would make the classification clear:
i) Employee A, who is regularised prior to 01.04.2003, who has put in 15
years of service in Non-provincialised service, consolidated pay,
honorarium or daily wages but regularised after 01.04.2003 is denied the
benefit of the entire 25 years of service. It is the above classification on the
basis of each of regularisation as being irrational, discriminatory and
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arbitrary. Further, a temporary employee who has been appointed under
Rule 10(i)(a) of the Tamil Nadu State and Subordinate Service Rules is
extended the benefit of the entire service being reckoned for calculating
pensionary benefits, while those who rendered services as non-
provincialised service, consolidated pay, honorarium or daily wages
employees were denied pensionary benefits unless and until their services
were regularised before 01.04.2003. In this regard, the reference was made
to Rule 10(i)(a) to suggest that appointments made under the said Rule was
again temporary in nature and thus differential treatment of appointment
under Rule 10(i)(a) of the Tamil Nadu State and Subordinate Service Rules
and those appointed under Non provincialised services, consolidated pay,
honorarium or daily wages is irrational and arbitrary.
18. Failure to take into account the above-mentioned crucial aspects
produces results which may fall foul of Article 14 of the Constitution and
may also constitute unfair labour practices in terms of Industrial Disputes
Act, 1947 and it is impermissible on part of the State Government to be
exploitative i.e., to take work from the employees under the above schemes
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for long periods.
19. In the present case, services were rendered for a period of over 30
years and after regularising their employment denying the right to count the
services rendered under the scheme for which they have been paid lesser
salaries is grossly unreasonable and arbitrary. In view of the above, it was
submitted that the matter may require reconsideration.
20. We find merit in the submission made by the counsel for
respondents on both the counts, thus in our view the Full Bench may require
reconsideration. Let the matters be placed before the Hon'ble Chief Justice
for appropriate directions.
(S.V.N., J.) (M.S.Q., J.)
23.03.2022
Speaking order/Non-speaking order
Index: Yes/No
smn/mka
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To:
1. The Secretary to Government,
Social Welfare & Nutritious to Government,
Meal Scheme ( Sa.U.Thi.2) Department,
Secretariat, Chennai – 9.
2. The Principal Accountant General,
O/o The Principal Accountant General,
( Accounts & Entitlements)
361, Anna Salai, Chennai – 18.
3. The Director of School Education,
College Road, Chennai -6.
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S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
smn/mka
W.A. Nos.714 to 716 of 2014
23.03.2022
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