Madras High Court
V.Srinivasan (Deceased) vs The Controller on 20 July, 2023
WP No.13040 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2023
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
WP No.13040 of 2016
V.Srinivasan (deceased)
2. Mallika
3. Venkatesan
4. Rengaraj ... Petitioners
-Vs-
1. The Controller
Tamil Nadu Agriculture University
Coimbatore.
2. The Directorate of Research
Tamil Nadu Rice Research Institute
Aduthurai, Tanjore District.
3. The Registrar
Tamil Nadu Agriculture University
Coimbatore District. ... Respondents
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WP No.13040 of 2016
PRAYER: Writ Petition under Article 226 of the Constitution of India
praying for a Writ of Certiorarified Mandamus calling for the records
relating to the order passed by the third respondent in No.ALO/WP No.
38586/2015 dated 15.02.2016 and quash the same and further direct the
respondents to follow the G.O.408 dated 25.08.2009 and pay pension with
accrued interest.
***
For Petitioners : Mr.S.Parthasarathy
For RR 1 & 2 : Mr.K.Surendaran
Additional Government Pleader
For 3rd Respondent : Mr.M.Vijaya Mehanath
ORDER
Writ Petition has been filed in the nature of Certiorarified Mandamus
seeking interference with an order passed by the third respondent / the
Registrar, Tamil Nadu Agriculture University, Coimbatore District, in No.
ALO/WP No. 38586/2015 dated 15.02.2016 and direct the respondents to
follow G.O 408 dated 25.08.2009 and pay pension with accrued interest.
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WP No.13040 of 2016
2. The Writ Petition had been filed by V.Srinivasan, who had been
appointed as Casual Mazdoor in the second respondent / the Directorate of
Research, Tamil Nadu Rice Research Institute, Aduthurai, Tanjore District,
on 05.06.1975. He worked till 18.09.1989. He was then made permanent as
a provisionalised unskilled mazdoor and later, as Office Assistant. He
retired on attaining the age of superannuation on 28.02.2015 as Office
Assistant (Selection Grade). The petitioner, had raised objections claiming
that his earlier period of service from 05.06.1975 till 18.09.1989, during
which he worked on daily wages should also be taken into consideration,
while determining the classifying years for calculation of pension. By not
extending that benefit, he averred that he had suffered financial loss and the
pension was also reduced.
3. The writ petitioner had earlier filed W.P.No. 38586 of 2015 and
a direction was given on 14.12.2015 by a learned Single Judge of this Court
to the first respondent / the Controller, Tamil Nadu Agriculture University,
Coimbatore, to examine the representation of the writ petitioner herein.
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WP No.13040 of 2016
That representation was rejected, necessitating the filing of the present Writ
Petition.
4. During the pendency of the Writ Petition, the petitioner
V.Srinivasan unfortunately died and by an order dated 03.04.2023 in
W.M.P.No. 5803 of 2023, his legal representatives had been substituted to
proceed further the issues in the Writ Petition as second to fourth
petitioners.
5. The petitioners placed reliance on G.O.Ms.No. 408, Finance
(Pension) Department, dated 25.08.2009, by which the Government had
directed that the period of service in which an employee worked as daily
wages along with three other categories were directed to be regularised and
also to be taken into consideration while determining the qualifying years
for grant of pension.
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WP No.13040 of 2016
6. On the side of the respondents, the facts stated above relating
to the service condition of the petitioner had not been denied or disputed.
The only issue which they contest is that there is no specific statement given
in G.O.Ms.No. 408, Finance (Pension) Department, dated 25.08.2009, that
it also applies to Universities. It has been pointed out that the respondent
herein is the Tamil Nadu Agriculture University. There had been
correspondences between the third respondent and the Government in this
regard and reliance is placed on a letter wherein it had been stated by the
Government that it is the choice of the Universities or aided institutions to
adopt G.O.Ms.No. 408, Finance (Pension) Department, dated 25.08.2009.
The Government had not specifically stated that it is applicable nor has it
stated that is not applicable, neither has it stated that it could be adopted
partially. The choice was left entirely with the particular institute, which
sought clarifications and in this case, the third respondent.
7. The learned counsel for the third respondent had brought to the
notice of this Court the minutes of the third respondent in which the Board
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WP No.13040 of 2016
members had deliberated on application of G.O.Ms.No. 408, Finance
(Pension) Department, dated 25.08.2009. Even before examining the
minutes, it must be placed on record that G.O.Ms.No. 408, Finance
(Pension) Department, dated 25.08.2009, was with respect to those who
worked in any Government Department under non provisionalised
service/consolidated pay/honorarium/daily wages, who had been
subsequently brought under regular establishment prior to 01.04.2003. The
third respondent had their own doubts relating to applicability of this
particular Government Order to the employees of their own University. The
cut off date is 01.04.2003. That cannot be interfered with by any
organisation, who adopts that Government Order.
8. The other aspect is that the employee should be in Government
Department. The third respondent strictly cannot be categorised as a
Government Department. It is for that reason that the learned counsel for
the respondents brought to the notice of this Court the minutes of the 154th
Meeting of the Board of Management of the respondent University held on
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WP No.13040 of 2016
08.03.2010. It was held approximate to the date on which the Government
Order was brought into effect.
9. The specific agenda was to approve one half of the service
rendered by an employee under any of the above mentioned categories for
the purpose of pensionary benefits. By the proceedings dated 27.03.2010,
the Board had taken a decision to request the Government to extend benefits
in G.O.Ms.No. 408, Finance (Pension) Department, dated 25.08.2009, to the
retired employees of the Agriculture University, who fell under the above
categories. In the meanwhile, they also went about calculating the number
of employees, who would so benefit. There was yet another minutes of a
meeting, which had been produced by the learned counsel for the
respondents and that was on 13.07.2010 which is in proceedings No. 155. It
had been stated that the subject had been considered in the earlier meeting
of the Board and and the financial commitment had been directed to be
produced. It was then decided as follows:-
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WP No.13040 of 2016
"If the Government Order is implemented in
the TNAI the retired employees who needs short
spell of service to satisfy the pensionary rules will
be benefited. Hence, it is proposed to place the
subject again before the Board of Management
for adoption of the above G.O., in the University
to enable to extend the benefits to the retired
employees who falls under the above category to
count the half of the services rendered by an
employee under non-provincialised
service/consolidated/Honorarium for the purpose
of pensionary benefits except the service
rendered by the retired employees in daily
wages."
10. A reading of the above resolution passed or decision taken
would imply that the third respondent had applied their mind and had taken
a decision to extend the benefit of G.O.Ms.No. 408, Finance (Pension)
Department, dated 25.08.2009 to those employees under non
provisionalised services / consolidated pay/ honorarium / daily wages. They
had however excluded the service rendered by the retired employees in
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WP No.13040 of 2016
daily wages. This stand has been consistently maintained and this is the
reason why the petitioner's service when he was working as daily wage was
not taken into consideration while calculating the pension.
11. The one factor which is also to be mentioned is that under
G.O.Ms.No. 408, Finance (Pension) Department, dated 25.08.2009, the
Government had stipulated that the period for which any employee in any
Government Department falling under the above mentioned categories
would be entitled for pension for one half for the period which he or she
worked as non provisionalised services / consolidated pay / honorarium /
daily wages. The third respondent then proceeded to address the
Government with respect to the resolution passed by them and the decision
taken by them. A copy of a letter dated 09.08.2010 issued by the
Government to Annamalai University had also been produced as document
which gave liberty to the Universities to adopt G.O.Ms.No. 408, Finance
(Pension) Department, dated 25.08.2009 and take a decision. Based on
these documents by which primarily the stand of the respondents is
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WP No.13040 of 2016
reflected, learned counsel insisted that there were various factors which
played upon, the mind of the respondents for excluding those, who rendered
service on daily wage from their conception of applicability under
G.O.Ms.No. 408, Finance (Pension) Department, dated 25.08.2009.
12. The primary one apparently was the financial commitment
which may be involved if such benefits were to be extended to all those
worked as daily wages. It must also be stated that this particular
commitment has not been stated in the resolution passed. The resolution is
extracted is quite simple and it is quite straightforward. In the resolution, a
decision had been taken to adopt G.O.Ms.No. 408, Finance (Pension)
Department, dated 25.08.2009 but for some reason adopted by excluding
those who rendered service on daily wage basis.
13. I really wonder as to how this special classification of a
clarification could be put into effect by the respondents. The Government
had extended grant of the pension for one half number of years for service
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WP No.13040 of 2016
rendered in non-provisionalised service / consolidated pay / honorarium/
daily wages. If in a particular University as in the case of , the respondent
University workers of all the four categories or atleast more than two of the
categories did render service, then making this particular Government Order
applicable to just one category of workers and excluding the other could be
termed as exercise of a right of the third respondent University. They could
have reasons such as the financial commitment. They should indicate it if
they cannot extend such privilege to all the categories of workers. But, the
issue of financial commitment should be on the basis of the actual
commitment which would be incurred and reducing it in the resolution
passed and thereafter, justifying exclusion of a particular clause and
inclusion of the other clause. It should also be further explained as to why
one particular class was included and the other class was excluded. Any
resolution which touches or for that matter any order which touches on the
service conditions of employees, whether they are in service or had retired,
should have clarity in that resolution or the order. To ensure clarity, reasons
must be given.
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WP No.13040 of 2016
14. A persons affected should know why he had been excluded.
The petitioner, in this case, has filed the Writ Petition only expressing
wounder as to why his service which he rendered as daily wages, stood
excluded. He had been regularised in the year 1989 but even prior to that,
he had been rendering service and the nature of service is the same.
Unfortunately, his pay was different. It was calculated on daily wage basis.
It is not said against the petitioner that his services were less or than those
who were in regular service. He has not been regularised but G.O.Ms.No.
408, Finance (Pension) Department, dated 25.08.2009 came to be passed
keeping in mind those who suffered a financial loss like the petitioner
herein.
15. The Government was conscious of the fact that extending
pensionary benefits from the date of regularisation would adversely effect
those, who had actually rendered service as daily wage. The words used in
the resolution are also “rendered service on daily wages”. This would also
mean that the respondents have recognised that the petitioner had actually
rendered service. The terms of his pay was only on daily wage.
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WP No.13040 of 2016
16. I do not find any reason as to why a daily wage worker should
be excluded and the other categories of workers as stated in the Government
Order should be included by the third respondent. There is no clarity in the
resolution. There is no clarity even in the notes put up for the Board for
consideration.
17. There is yet one further fact. If there is a comparison of
economic impact of this particular Government Order on all the four
categories independently, it would be those, who worked under daily wages,
who would suffer more if they stood excluded and who actually required the
benefit to be extended. Therefore, I am not able to understand the rationale
behind excluding daily wage workers, who rendered service on daily wage
from the purview of G.O.Ms.No. 408, Finance (Pension) Department, dated
25.08.2009 by the respondents.
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WP No.13040 of 2016
18. There has been a precedent on this issue. My attention is drawn
to a Judgment of the Division Bench of this Court in W.A.(MD).No. 547 of
2012[ The State of Tamilnadu, Municipal Administration & Water Supply
Department, Chennai Vs. C.Muthumani]. By Judgment dated 24.08.2017,
the appellant therein had questioned an order passed by a learned Single
Judge in W.P.(MD).No. 14906 of 2011 on 09.03.2012 with respect to grant
of pension to the respondent therein who was working as NMR Pump
Operator cum Watchman. Though the ratio is not directly stated, the
Division Bench had stated that interest of justice would be served if 50% of
the said period were taken for computing pensionary benefits.
19. My attention is also drawn to the Judgment reported in 2014
(2) CTC 777 [ Union of India Vs. K.Punniyakoti and Others]. A Division
Bench also held that introduction of the new pension scheme, cannot
disentitle, those who had worked and appointed prior to the applicability of
the said pension scheme and had directed that 50% of the number of years
should be taken into consideration for calculating the pension.
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WP No.13040 of 2016
20. In effect, the ratio laid down in both the Judgments is that for
the services rendered under daily wages, 50% of that service must be taken
for calculating the pension.
21. I would place a direction on the third respondent to re-work the
pensionary benefits of the petitioner herein by taking into consideration his
service also from 05.06.1975 till 18.09.1989 and consider one half of that
period towards qualifying services for calculating the pensionary benefits
and pay the necessary benefits to the petitioners herein, who have been
subsequently substituted as petitioners consequent to the death of the writ
petitioner. This exercise of the respondents may be completed within a
period of three months from the date of receipt of a copy of this order.
22. The Writ Petition stands allowed. No costs.
20.07.2023
vsg
Index: Yes/No
Internet: Yes/No
Speaking / Non Speaking Order
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WP No.13040 of 2016
C.V.KARTHIKEYAN, J.,
vsg
To
1. The Controller
Tamil Nadu Agriculture University
Coimbatore.
2. The Directorate of Research
Tamil Nadu Rice Research Institute
Aduthurai, Tanjore District.
3. The Registrar
Tamil Nadu Agriculture University
Coimbatore District.
WP No.13040 of 2016
20.07.2023
https://www.mhc.tn.gov.in/judis
