Madras High Court
Mrs. K. Sankarapackialakshmi vs The Secretary To Government on 3 November, 2022
W.P.No. 35327 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.11.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No. 35327 of 2016
and
W.M.P.No. 30414 of 2016
Mrs. K. Sankarapackialakshmi
... Petitioner
Vs.
1. The Secretary to Government,
Government of Tamilnadu (Education),
Fort St. George,
Chennai.
2. The Commissioner,
Department of Government Information Centre,
Guindy,
Chennai – 600 025.
3. The Director,
Directorate of School Education,
D.P.I. Campus,
College Road,
Chennai – 600 006.
4. The Director Elementary Education,
O/o. the Elementary Education,
College Road,
Chennai – 600 006.
5. The District Elementary Educational Officer,
Office of the District Elementary Education,
Tirunelveli – 627 006.
Page 1 of 8
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W.P.No. 35327 of 2016
6. The Additional Assistant Elementary Educational Officer,
Office of the Additional Elementary Education Office,
Sankaran Kovil & Post,
Tirunelveli District – 627 756.
7. The Accountant General,
Pay & Accounts,
Chennai – 600 015,
Tamilnadu.
... Respondents
Prayer: Writ Petition filed Under Article 226 of the Constitution of India for
the issuance of a Writ of Mandamus, directing the respondents to consider
the representation of the petitioner dated 04.03.2016 and 30.07.2016.
For Petitioner : Mr. G. Thalaimuthutharasu
For Respondents : Mrs. S. Mythreyechandru
Special Government Pleader
for R1 to R6
ORDER
The relief sought for in the present writ petition is to direct the
respondents to consider the representations of the writ petitioner dated
04.03.2016 and 30.07.2016.
2. The petitioner states that he was initially appointed on 01.09.2001 as
Secondary Grade Teacher in Rowther Sahib Elementary School, Teriruveli,
Ramnathapuram District, which is an aided institution. Subsequently, the
petitioner participated in the process of selection independently and got
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W.P.No. 35327 of 2016
selected and appointed as secondary grade teacher in Kathakulam,
Mudukulathur Union School and joined on 13.03.2006.
3. The learned counsel for the petitioner made a submission that the
petitioner was appointed in the year 2001 in the aided institution and
thereafter he participated in the process of selection and joined into
Government services. Thus, he is eligible for the pension under the old
pension Rules namely the Tamil Nadu Pension Rules, 1978.
4. The learned counsel for the petitioner made a submission that the
petitioner made several representations and the authorities have not replied to
the same and thus the present writ petition has been filed.
5. In this regard, merely directing the respondents to consider the
representations would do no service to the cause of justice. The writ petition
is pending for the past about six years. In the event of issuing a direction to
consider the representation would result in filing of another writ petition by
the writ petitioner since the learned Special Government Pleader raised an
objection regarding the eligibility of writ petitioner to avail the benefit under
the old Tamil Nadu pension Scheme and thus, this court is of the opinion that
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W.P.No. 35327 of 2016
directing the respondents to consider the representation will not serve any
purpose.
6. Regarding the eligibility, the learned Special Government Pleader
appearing on behalf of the writ petitioner mainly contended that the writ
petitioner admittedly joined into Government Services on 13.03.2006 i.e.
after the cut of date, 01.04.2003. Thus, she is entitled for the pension under
the new pension scheme that is contributory pension scheme. The petitioner
has resigned his job from the aided school and joined as a fresh entrant in the
Government services. The petitioner has not obtained any prior permission or
approval from the education department regarding to participate in the
process of selection or otherwise. Therefore, the petitioner resigned her job
from the aided school and thereafter took an appointment into Government
Services and thus, the petitioner is to be considered only under the
contributory pension scheme and is not eligible to avail the benefits under the
Tamil Nadu Pension Rules, 1978. Since the new pension scheme was
introduced from 01.04.2003 and the petitioner joined into Government
services on 13.03.2006, she is falling under the contributory pension scheme
and thus the writ petition is to be rejected.
7. This Court is of the considered opinion that the issues raised in the
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W.P.No. 35327 of 2016
regard are no more res integra. This Court has elaborately considered the
issue in W.P.Nos. 5674 and 5675 of 2014 dated 08.07.2022. In the said
judgment, the judgment passed by the earlier Hon'ble Division Bench and the
subsequent orders were also considered.
8. The relevant portion of the said order reads as under:
'9. Rule 41 of the Tamil Nadu State and
Subordinate Services provides that a member of a
service shall if he resigns his appointment, forfeit
not only the service rendered by him in the
particular post held by him at the time of his
resignation but all his previous services under the
Government. The re-appointment of such person
to any service shall be treated in the same way as
a first appointment to such service by direct
recruitment and all rules governing such
appointment shall apply and on such re-
appointment, he shall not be entitled to count any
portion of his previous service for any benefit or
concession admissible under any rule or order.
10. Even as per the Rule 23 of the Tamil
Nadu Pension Rules, resignation from a service
rendered by the petitioner prior to her resignation
cannot be taken into account for the purpose of
grant of pension as well.
11. As per amendment to Fundamental Rule
26, the periods prior to the discharge from service
shall count for the purpose of future increment in
the time scale of pay of that post. For counting the
service for the purpose of future increment in the
time scale of pay of that post, the petitioner should
have been discharged (relieved) from the post.
But in these cases, the petitioners, on their own
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W.P.No. 35327 of 2016
volition, have tendered resignation prior to
joining the new post and it was duly accepted by
the authority. Hence the petitioners are not
eligible for inclusion of the service rendered prior
to their resignation, for the purpose of re-fixation
of scale of pay and pension benefits as per Rule
41 of the Tamil Nadu State and Subordinate
Services and Rule 23 of the Tamil Nadu Pension
Rules.
12. The petitioners referred the case of one
Rev.Fr.Stanislaus M. Fernanadez. The said case
cannot be made applicable to the petitioners,
since the individual in that case was relieved from
the earlier service prior to joining the later
service. But in the petitioners case, they had
resigned the post and as such they are not entitled
for the relief on par with the lines of Rev. Fr.
Stanislaus M. Fernanadez.
13. Even in the case of Thiru. M. Jayaraj,
and 292, the Government orders issued in
G.O.Ms. No. 181 School Education dated
09.01.1997. In the said case also, the individual
Thiru. M. Jayaraj had not resigned his post but
was relieved from earlier service prior to join the
later service. Thus, the said case is also not
applicable to the case of the writ petitioners as
they had resigned from the earlier post.
14. The grounds raised by the petitioners
are applicable for the cases, where, the employee
has not resigned the post but relieved properly.
In the present cases, the petitioners at their own
volition, resigned their post and joined as fresh
appointees in the Panchayat Union School and
accordingly, their scale of pay was fixed.
15. Under these circumstances, the case of
writ petitioners are covered under Rule 41 of the
Tamil Nadu State and Subordinate Services Rules
and Rule 23 of the Tamil Nadu Pension Rules and
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W.P.No. 35327 of 2016
therefore, the petitioners are not entitled for the
relief as such sought for in the present writ
petitions.'
9. In view of the fact that the petitioner has joined into Government
Services on 13.03.2006, the petitioner is eligible to avail the benefit under the
new pension scheme namely the contributory pension Scheme and she is not
eligible to get the benefits under the Tamil Nadu Pension Rules 1978.
Accordingly, the writ petition is devoid of merits and stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
03.11.2022
mrn
Index : Yes / No
Speaking order / Non-Speaking order
To
1. The Secretary to Government,
Government of Tamilnadu (Education),
Fort St. George,
Chennai.
2. The Commissioner,
Department of Government Information Centre,
Guindy,
Chennai – 600 025.
S.M.SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis
W.P.No. 35327 of 2016
mrn
3. The Director,
Directorate of School Education,
D.P.I. Campus,
College Road,
Chennai – 600 006.
4. The Director Elementary Education,
O/o. the Elementary Education,
College Road,
Chennai – 600 006.
5. The District Elementary Educational Officer,
Office of the District Elementary Education,
Tirunelveli – 627 006.
6. The Additional Assistant Elementary Educational Officer,
Office of the Additional Elementary Education Office,
Sankaran Kovil & Post,
Tirunelveli District – 627 756.
7. The Accountant General,
Pay & Accounts,
Chennai – 600 015,
Tamilnadu.
W.P.No. 35327 of 2016
and
W.M.P.No. 30414 of 2016
03.11.2022
https://www.mhc.tn.gov.in/judis
