Madras High Court
The Commissioner vs M.Poomaalai (Died) on 10 July, 2023
W.A.(MD)No.1261 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.07.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.1261 of 2014
and
M.P.(MD)No.2 of 2014
The Commissioner,
Madurai Corporation,
Madurai District. ...Appellant
/Vs./
1.M.Poomaalai (Died)
2.P.Tamilarasi
3.P.Manikandan
4.P.Murugan
5.P.Sudha ...Respondents
(R2 to R5 are brought up as legal heirs of the deceased first respondent
through memo dated 10.07.2023.)
PRAYER:- Writ Appeal - filed under Clause XV of Letters Patent Act, to
set aside the order made in W.P.(MD)No.36 of 2010 dated 11.12.2013 on
the file of this Court.
1/6
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W.A.(MD)No.1261 of 2014
For Appellant : Mr.R.Murali
For Respondent : Mr.Vetrivel
for Mr.S.Rajasekar
JUDGMENT
(Judgment of the Court was made by DR.ANITA SUMANTH, J.)
We have heard detailed submissions of Mr.R.Murali, for the
Commissioner of Madurai Corporation / appellant and Mr.Vetrivel, for
the respondent / writ petitioner.
2. The writ petitioner is no more as on date and a memo is
filed enclosing a copy of the death certificate as well as the legal heirship
certificate. The details of the legal heirs set out therein are taken note of
and the Registry is directed to amend the array of parties accordingly.
3. The writ petition had been allowed by an order dated
11.12.2013. The prayer in the writ petition was a challenge to an order
passed by the appellant on 03.12.2009 rejecting the petitioner's request
for pensionary benefits.
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W.A.(MD)No.1261 of 2014
4. The writ petitioner was in the service of Madurai
Corporation as Temporary Motor Attendant on daily wages since 1963.
In 1979, the services of the petitioner were regularized and he continued
in service till 24.01.1992. Thereafter there was a long hiatus, and the
petitioner had absented himself, ostensibly for medical reasons, for a
period of 15 years. This led to his dismissal from service on 11.05.2019.
5. Unfortunately for the petitioner, there has been no challenge
to this order. The factum of dismissal is noted by the learned Single
Judge, who also notes the position that the order has not been under
challenge at any point of time. Despite this, the learned Judge has
proceeded to apply G.O.Ms.No.408, Finance (Pension) Department,
dated 25.08.2009 as per which 50% of the past period of the service is to
be included to subsequent service period for the purpose of settlement of
retirement benefits.
6. As rightly pointed out by learned Panel counsel, the grant of
pensionary benefits would depend on continuity of service of the
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W.A.(MD)No.1261 of 2014
petitioner and Rule 21 of the Tamil Nadu Pension Rules, 1978, makes it
categoric that dismissal or removal of Government servant from a service
or post, entails forfeiture of his past service.
7. The reasons for dismissal are not really relevant in this
context and what matters is whether the dismissal was challenged and
varied in any way. In the present case, the order of dismissal dated
11.05.2009 stares the writ petitioner on the face as remaining
unchallenged. Infact, the petitioner is well aware of the factum of
dismissal, as in his subsequent representation dated 18.07.2009, he seeks
reinstatement in employment as well in addition to monetary benefits.
8. The order of the learned Single Judge granting the petitioner
the benefit of G.O.Ms.No.408, Finance (Pension) Department, dated
25.08.2009 cannot be countenanced, as the said GO does not carve out
any exception or make any variation to Rule 21, which is absolute. We
thus find merit in this writ appeal and allow the same reversing the order
of the learned Single Judge.
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W.A.(MD)No.1261 of 2014
9. Learned counsel for the appellant then, as a last ditch effort,
draws our attention to the order passed in W.P.(MD)No.9469 of 2009 on
18.09.2009 pointing out that there has been a direction from this Court to
consider his representation for pensionary benefits. It is the disposal of
that representation that has given rise to the order impugned in the
present writ petition. Reference to order dated 18.09.2009 is futile as
there is no positive direction for disposal of representation from the
Court, but only mandamus simpliciter that evidently has to be in
accordance with law. No costs. Consequently, connected Miscellaneous
Petition is closed.
[A.S.M.J.,] & [R.V.J.,]
10.07.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.1261 of 2014
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
sm
Judgment made in
W.A.(MD)No.1261 of 2014
Dated:
10.07.2023
https://www.mhc.tn.gov.in/judis
