Madras High Court
P.Murugesan vs The Principal Secretary To ... on 23 September, 2022
W.P.No.33236 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.33236 of 2016
and
W.M.P.No.28723 of 2016
P.Murugesan ... Petitioner
Vs.
1.The Principal Secretary to Government,
Rural Development and Panchayats Department,
Fort St.George, Chennai – 600 009.
2.The Principal Accountant General,
(Accounts & Entitlements), Tamil Nadu,
Chennai – 600 018.
3.The Director of Rural Development and Panchayats,
Panagal Buildings, Chennai – 600 015.
4.The Collector,
Villupuram, Villupuram District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned order of the 4th respondent in Na.Ka.Pa.A-
1/1164/2016 dated 24.3.2016 and quash the same and direct the
respondents to count the service rendered by the petitioner in the post of
Panchayat Clerk/Panchayat Assistant/ Panchayat Secretary from 1.7.1986
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W.P.No.33236 of 2016
to 26.6.2014 as qualifying service for pension under the Old Pension
Scheme and grant him pension and other retirement benefits accordingly.
For Petitioner : Mr.P.Mohanraj
For R1, R3 & R4 : Mrs.N.Senthilselvi
Government Advocate
ORDER
The order of rejection, rejecting the claim of the writ petitioner for
grant of pension under the Old Pension Rules namely Tamil Nadu Pension
Rules, 1978 is under challenge in the present writ petition.
2. The petitioner was appointed as Part-Time Clerk on 01.07.1986.
The Part-Time Clerk was re-designated as Panchayat Assistant and the
petitioner was receiving the consolidated pay salary from the year 1991.
He was further re-designated as Panchayat Secretary and time scale of pay
was granted with effect from 01.09.2006. Thereafter, the petitioner was
appointed as Rural Welfare Officer Grade-II on 27.06.2014. Thereafter,
the Contributory Pension contribution was deducted from the salary of the
writ petitioner from July 2014 till his retirement.
3. The learned counsel for the petitioner states that the initial
appointment of the writ petitioner falls before the cut-off date on
01.04.2003 and from the said date, the New Pension scheme namely
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W.P.No.33236 of 2016
Contributory Pension Scheme was implemented. Therefore, the petitioner
is eligible for the benefit under the Tamilnadu Pension Rules, 1978. It is
further contended that though the initial appointment of the writ petitioner
was made as Part-Time Clerk, he was performing the duties as full time
employee for all purposes. Thereafter, the post was re-designated and
consolidated pay salary was paid. Thus, the petitioner is to be considered
as an employee appointed prior to 01.04.2003 for all purposes and the
pension is to be paid under the Tamil Nadu Pension Rules, 1978.
4. The 4th respondent filed a counter affidavit, stating that the
petitioner was brought under the regular establishment as Junior Assistant
only with effect from 27.06.2014. Previously, he was working as Part-
Time Panchayat Assistant and Secretary and thereafter, on consolidated
pay salary and for the purpose of grant of pensionary benefits, the date of
regular appointment is to be taken into consideration. Accordingly, the
petitioner was regularly appointed to the post of Junior Assistant on
27.06.2014, after the cut-off date of 01.04.2003. Thus, the petitioner is
eligible to get all the benefits under the Contributory Pension Scheme,
which was already settled.
5. The issues in this regard are elaborately considered by this Court
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W.P.No.33236 of 2016
in W.P.No.9562 of 2014 dated 20.07.2022 and the relevant paragraphs are
extracted hereunder:
“16. In view of the conflicting Judgements of the
Division Benches of this Court, in this line, more specifically,
regarding interpretation of amended Rule 11(4) of the
Pension Rules, the matter was referred to the Hon'ble Full
Bench of this Court in the case of Government of Tamil
Nadu, Public Works Department Vs. R.Kaliyamoorthy
passed in W.A.No.158 of 2016, etc., batch and the Hon'ble
Full Bench delivered a Judgement on 03.12.2019, which reads
as follows:-
“45. In the light of the above, we answer the
reference 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 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 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
employee/servant had also rendered service in
non-provincialised service, or on consolidated
pay or on honorarium or daily wage basis and if
such services were regularised before 01.04.2003,
half of such service rendered shall be counted for
the purpose of conferment of pensionary benefits.
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W.P.No.33236 of 2016
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 before 01.04.2003 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 entitled to
count half of their past service for the purpose of
determination of qualifying service for pension.”
17. The Hon'ble Full Bench held that the amended Rule
11(4) is upheld and the said Rule is to be followed
scrupulously in its letter and spirit. Thus, the Rule, as it is,
should be implemented for the purpose of extending the
benefit of counting 50% of the services and all other earlier
Judgements granting benefits contrary to the spirit of Rule 11
cannot be relied on as precedent for the purpose of granting
any further relief. Thus, the Full Bench Judgement is to be
followed as a precedent and more specifically Rule 11 which
contemplates qualifying service, is to be followed in its letter
and spirit for the purpose of extending the benefit of counting
50% of the services to the eligible employees for granting
pensionary benefits.
18. The learned Government Advocate relied on the counter
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W.P.No.33236 of 2016
statements filed by the respondents and contended that the
Judgements of the Division Bench relied on by the learned counsel
for the petitioner were passed in the years 2016 and 2018 and
subsequent to those Judgements, another Division Bench of this
Court, in a batch of Writ Appeals in W.A.(MD) Nos.1629 of 2018,
etc., elaborately considered the principles and allowed the Writ
Appeals on 26.02.2021, which reveals the subject as a whole, more
specifically, with reference to the services of the part-time
Panchayat Clerks. The learned Government Advocate relied on the
following paragraphs of the Judgement of the Division Bench,
which reads as under:-
"20.Much reliance has been made to Rule 11(a) read
with Rule 2(o) of the Tamil Nadu Pension Rules, 1978.
These Rules are not applicable to the services of
Talaiyaris, being in non~pensionable establishment
and part~time and that too not in a cadre post. As per
Rule 11(4), there must be whole~time employment.
Similarly, there shall not be any break, which is in
existence. Insofar as the other set of employees are
concerned, viz., Village Officers (Karnams), we may
appropriately quote Rule 16 of the Tamil Nadu Village
Servants Service Rules, 1980. Even as per Rule 16 of
the said Rules, the post of Talaiyari being~non
pensionable, they are not entitled.
21.We are quite convinced with the
entitlement of the respondents in the light of the
discussions made. Our above said conclusion is also
strengthened by the judgment of the Full Bench of this
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W.P.No.33236 of 2016
Court in Government of Tamil Nadu and others v.
R.Kaliyamoorthy reported in 2019(6) CTC 705, which
could be seen through the following paragraphs:~
"29. Having regard to the above rule
position, we proceed to examine the claim of the writ
petitioners. Admittedly, the writ petitioners herein
were appointed in various departments of the
Government in non~provincialised services, on
consolidated pay, honorarium or daily wage basis, on
contingency basis. They were not appointed against
any sanctioned post or regular post. For having
rendered such service, they were paid daily wage or
wages from the contingency fund. To be specific, the
writ petitioners were not appointed in a cadre post
whether on temporary or permanent basis against
vacancies which were duly notified. They were
appointed on daily wage basis prior to 01.04.2003 on
various dates. The service of some of the petitioners
were also admittedly regularised after 01.04.2003 in a
cadre post as and when permanent vacancies arose or
had been notified. The writ petitioners therefore
claimed that they are entitled to count half of the
service rendered by them on daily wage basis or as
contingent employees or on honorarium basis or in
non~provincialised services etc. along with the regular
service as has been contemplated under Rule 11 (4).
The petitioners also claimed equity on par with one
Murugan, in whose favour, the Government passed
G.O. (D) No.332, Environment and Forest Department
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W.P.No.33236 of 2016
dated 19.11.2008 by which the service rendered by the
said Murugan, on daily wage basis for about 20 years
was ordered to be counted along with his regular
service rendered by him till his retirement on
30.09.2005. In other words, even though the service of
the said Murugan was regularised after 01.04.2003,
yet, as a special case, the Government issued G.O. (D)
No.332, Environment and Forest Department dated
19.11.2008 and ordered to count half of the service
rendered by him on daily wage basis along with his
regular service. This had apparently sparked and/or
kick~started a volley of writ petitions to be filed before
this Court at the instance of persons similarly placed
like the writ petitioners in this batch. This Court had
also, based on the order passed by the Government in
G.O. (D) No.332, Environment and Forest Department
dated 19.11.2008 directed the Government to count
half of the service rendered by the persons similarly
placed like the petitioners along with their regular
service, purportedly on the ground of equity. The State
Government filed writ appeals before the Division
Bench of this Court, as against few cases in which
such directions were issued by the single Bench.
...
31. On behalf of the writ petitioners, it was
contended that the writ petitioners have been
temporarily employed with nomenclature such as daily
wage employees, on consolidated pay or on
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W.P.No.33236 of 2016
honorarium basis etc. and as per Rule 11 (1) the
service rendered by them in such temporary
employment has to be counted along with the regular
service in a cadre post. We wish to observe that the
word temporary or officiating service employed in
Rule 11 (1) is referable to -temporary appointment-
contemplated under Rule 10 (a) (i) of Tamil Nadu State
and Subordinate Services Rules. On a reading of Rule
10 (a) (i), the wordings employed thereof are explicit
and clear. A temporary appointment made to a
government service is the one which is made in a post
borne on the cadre of a service, class or category,
meaning thereby such temporary appointment is made
in an existing vacancy or notified vacancy. Rule 10 (a)
(i) further makes the position clear that such
appointment is permissible to be made by the
appointing authority in case of emergency to fill the
vacancy, in public interest. For such appointment, the
appointing authority has to form an opinion that the
procedural process for appointment to the cadre post
will take some time and that such delay would
prejudice the public interest. In such circumstances,
Rule 10 (a) (i) can be invoked for appointing a
candidate on temporary appointment in a sanctioned
post. The service of such person, though appointed on
temporary appointment can later be regularised by
following the due procedure. The significance for
invoking Rule 10 (a) (i), apart from public interest, is
the existence of sanctioned post or vacancy in a post
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W.P.No.33236 of 2016
borne on the cadre of a service, class or category.
Thus, Rule 10 (a) (i) cannot be invoked in the absence
of an existing vacancy in a cadre post. Therefore, we
are of the view that the temporary appointment
mentioned in Rule 11 of the Pension Rules, in the
realm of Service Law Jurisprudence, is referable only
to Rule 10 (a) (i) of the Tamil Nadu State and
Subordinate Services. The writ petitioners were
however appointed on daily wage basis on payment of
honorarium or consolidated pay and did not come
within the fold of Rule 10 (a) (i) of the Tamil Nadu
State and Subordinate Services Rules. Only the
appointments made under the provisions of Rule 10 (a)
(i) of the aforesaid Rules alone can be considered as
temporary appointment. Therefore, the submissions
made on behalf of the petitioners relying upon Rule 3
(o) has to be rejected. Admittedly the Writ Petitioners
were not appointed invoking Rule 10(a)(i).
.....
34. Rule 11 (4) of the Tamil Nadu Pension
Rules, 1978 confers an additional benefit to such class
of Government servants to include half of the service
rendered in the above capacity for determining
qualifying service provided their service was
regularised before 01.04.2003. Rule 11 (4) by itself is
not intended to deny pension to respondents/writ
petitioners if appointment was prior to 01.04.2003 in
the cadre post, whether temporary or permanent.
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W.P.No.33236 of 2016
35. Rule 11 (4) merely provides a method
for determining the ? qualifying service? for
government employees who were absorbed into service
before cut~off date of 01.04.2003.
36. The significance of Rule 11 (4) is to
bring the service of a government employee / servant
within the realm of qualifying service to count half of
the service rendered under the State Government in
non~provisionalised service, consolidated pay,
honorarium or daily wages basis before 1st April 2003
for retirement benefits, if the absorption to service was
before 01.04.2003.
37. Rule 11 (4) of the Tamil Nadu Pension
Rules, 1978 allows a Government employee / servant
appointed in a cadre post before 01.04.2003 as per the
Rules whether in temporary or permanent capacity to
include 50% of the service rendered in (i)
non~provincialised services; (ii) Consolidated pay;
(iii) honorarium; or (iv) daily wage basis along with
regular service subject to conditions stipulated therein.
38. For instance if a government
employee/servant was appointed and absorbed
between the cut off dates i.e. 01.01.1961 and
01.04.2003, then he/she will be entitled to include half
of the service rendered under the State Government in
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W.P.No.33236 of 2016
(i) non~provincialised services; (ii) Consolidated pay;
(iii) honorarium; or (iv) daily wage basis into his/her
services for determination of qualifying service.
39. On the other hand, if a Government
employee / servant was not absorbed between the
aforesaid cut off dates, he/she will not be entitled to
include half of the service rendered under the State
Government in (i) non~provincialised services; (ii)
Consolidated pay; (iii) honorarium; or (iv) daily wage
basis into his/her services even though such person
may be entitled to Government Pension under the Rule
if he/she was appointed in a cadre post on or before
01.04.2003 but was absorbed after the said date.
40. For example, if a person is appointed
prior to 01.04.2003 in a non~provincialised service or
on consolidated pay or on honorarium or daily wage
basis and later to a cadre post on temporary basis
under Rule 10 (a) (i) of The Tamil Nadu State and
Subordinate Service Rules before 01.04.2003 and such
service is regularised after 01/04/2003, such
Government employee is eligible for Government
Pension under the Tamil Nadu Pension Rules but at
the same time would not be eligible to include half of
services rendered in such capacity viz., i)
Non~provincialised Services ii) Consolidated pay; iii)
honorarium; or iv) daily wage basis to his regular
service.
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41. Thus, a government servant who may
have been appointed before the cut~off date of
31.03.2003 may be entitled to government pension if
he satisfies the requirement of qualifying service in
Rule 3(o) of the Tamil Nadu Pension Rules, 1978.
However, such a person will not be entitled to add half
of the past service held in any one of the four capacity
mentioned above prior to 01.04.2003 since his
regularisation is subsequent to the cut off date.
Therefore, only those who were appointed prior to
01.04.2003 whether as temporary appointment but in
accordance with Rule 10 (a) (i) alone will be entitled
to get pension.
42. The cut off date i.e. on or after
01.04.2003 in proviso to Rule 2 of the Tamil Nadu
Pension Rules, 1978 will not per se bar a person from
getting pension if such a person had joined the service
in accordance with the provisions of Tamil Nadu State
and Subordinate Service Rules i.e in the cadre whether
on temporary or permanent basis. Services rendered
before the cut off date of 01.04.2003, can be added to
the regular service only if the service was regularised
before the said date for determining the qualifying
service. Therefore, in our opinion, it would be
appropriate to say that Rule 11 (4) gives the meaning
of qualifying service rather than giving significance to
cut off date. Therefore, it is clear that only if the
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W.P.No.33236 of 2016
appointment is in accordance with the Rules and such
appointment is prior to 01.04.2003, 50% of the past
service can be added along with the regular service.
.....
44. The aforesaid Judgment of the
Honourable Supreme Court would squarely apply to
this case. Merely because this Court has passed
multiple number of orders in favour of some of the
similarly placed persons like the writ petitioners, it
will not operate as res judicata or it will preclude
theState Government from questioning those orders in
a parallel or similar proceedings. In such
circumstances, we are of the view that the orders,
hitherto passed by this Court, both single Bench or the
Division Bench will not operate as a bar for
maintaining these writ appeals or writ petitions or
those orders will not be considered as the one which
laid down any binding precedent to be followed in
other cases. An order, which was not passed in
accordance with the statutory provisions, need not be
followed by the Court at the instance of similarly
placed persons."
The sum and substance of the decision
rendered, which in our view, is that a Government
Servant is entitled for reckoning the half of the past
services, even while working in non~provincialised
service, or on consolidated pay or on honorarium or
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W.P.No.33236 of 2016
daily wage basis only when there exists a cadre post.
Rule 11 of the Tamil Nadu Pension Rules, 1978,
merely facilitate the reckoning of the past services of a
Government servants subject to the conditions
stipulated therein.
..............
26.Having considered the entire issues
involved, we also find that there is no application of
Article 14 of the Constitution of India by comparing
the respondents with those who got the relief albeit
without taking note of the relevant provisions of law.
Granting the relief would amount to setting aside two
pension Rules without even a challenge especially
when the respondents got the benefit of regular
employment and permanent posts under the subsequent
orders passed, on their request.
27.In the result, the appeals filed by the
Government of Tamil Nadu stand allowed by setting
aside the orders passed by the learned Single Judge
and consequently, the appeal filed by the Writ
Petitioner in W.A.(MD) No.831 of 2020 stands
dismissed. No costs. Consequently, connected
Miscellaneous Petitions are closed."
29. Keeping in mind the principles and the Judgements
elaborately discussed in the aforementioned paragraphs,
the admitted fact in the case on hand is that the petitioner
was appointed as part-time Panchayat Clerk and
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W.P.No.33236 of 2016
subsequently appointed as Panchayat Assistant and
thereafter as Junior Assistant on regular basis and retired
from services. It is further admitted that the regular services
rendered by the petitioner was already taken into
consideration for the purpose of grant of pensionary
benefits and he had received all such benefits. The
grievance is that 50% of the part-time Panchayat Clerk
services were not taken into consideration, for the purpose
of reckoning the qualifying service for grant of pensionary
benefits.
30. Rule 11(2)(i) of the Pension Rules contemplates
that half of the services shall be counted only in a job
involving whole time employment and not part-time. In the
present case, even in the affidavit filed in support of the
Writ Petition, the petitioner has stated that he was
appointed as part-time Panchayat Clerk. The Hon'ble Full
Bench of this Court also held that Rule 11 is to be followed
scrupulously for the purpose of extending the benefit of
counting 50% of the services to the temporary/daily
wages/consolidated pay employees.
31. This being the factum established, the Judgements
relied on by the learned counsel for the petitioner are of no
avail to them, as the Hon'ble Full Bench of this Court held
that Rule 11 and Rule 11(4) of the Pension Rules is to be
followed scrupulously for the purpose of counting 50% of
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the services rendered by the employees. After the Full Bench
Judgement, another Division Bench of the Madurai Bench
of this Court, in a batch of Writ Appeals in W.A.(MD)
Nos.1629 of 2018, etc., delivered the Judgement on
26.02.2021, dismissing all the Writ Appeals filed by the
part-time Panchayat Clerks seeking the benefit of counting
50% of the services.
32. Therefore, this Court is of the considered opinion
that even based on the Judgement of the Hon'ble Full Bench
and the subsequent Judgement of the Hon'ble Division
Bench and independently applying the principles to be
followed in such circumstances by the Court, as discussed
above, the relief as such sought for in this Writ Petition
cannot be granted.”
6. In view of the fact that the petitioner in the present case was also
regularly appointed as Junior Assistant only in the year 2014, he is eligible
to avail the benefit under the New Pension Scheme i.e., Contributory
Pension Scheme and his claim for grant of pension under the Tamil Nadu
Pension Rules, 1978 was rightly rejected and thus, this Court do not find
any infirmity in respect of the order impugned in the present writ petition.
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W.P.No.33236 of 2016
7. Accordingly, the writ petition stands dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
23.09.2022
kak
Index : Yes
Speaking order : Yes
To
1.The Principal Secretary to Government,
Rural Development and Panchayats Department,
Fort St.George, Chennai – 600 009.
2.The Principal Accountant General,
(Accounts & Entitlements), Tamil Nadu,
Chennai – 600 018.
3.The Director of Rural Development and Panchayats,
Panagal Buildings, Chennai – 600 015.
4.The Collector,
Villupuram, Villupuram District.
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W.P.No.33236 of 2016
S.M.SUBRAMANIAM, J.
kak
W.P.No.33236 of 2016
23.09.2022
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