Madras High Court

E.Pachiappan vs The State Of Tamil Nadu on 26 July, 2023

                                                                            W.P.No.10530 of 2018

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 26.07.2023

                                                         CORAM :

                                    THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                                  W.P.No.10530 of 2018

                     E.Pachiappan                                                  .. Petitioner

                                                            vs

                     1.The State of Tamil Nadu
                       Rep. By its Secretary to Government,
                       Rural Development Department,
                       Fort St.George, Chennai – 9.

                     2.The Director,
                       Local Fund Audit Department,
                       Saidapet Animal Husbandry Campus,
                       Nandanam, Chennai – 35.

                     3.The Collector,
                       Thiruvannamalai Collectorate,
                       Thiruvannamalai.

                     4.The Commissioner,
                       Thellar Panchayat Union,
                       Vandavasi Taluk,
                       Thiruvannamalai Taluk.                                   .. Respondents


                                  Petition filed under Article 226 of the Constitution of India
                     praying to issue a writ of mandamus directing the respondents to
                     forthwith calculate and pay the revised pension and arrears of
                     pension based on G.O.Ms.No.408 (Finance), Pension Department
                     dated 25.08.2009 in the time bound manner by taking into
                     consideration the 50% of the services rendered by the petitioner's
                     husband prior to 01.10.1984.

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                                                                               W.P.No.10530 of 2018



                                  For Petitioner          :      Mr.S.Ramesh

                                  For Respondents         :      Mr.S.Ravikumar
                                                                 Special Government Pleader
                                                                 for R1 to R3
                                                                 Mr.P.S.Sivashanmugasundaram
                                                                 for R4

                                                              ORDER

The petitioner had been appointed as B-II Class Siddha Doctor

on 21.05.1974 at Nallur Village. He retired on attaining the age of

superannuation on 31.01.2003. Pension had also been sanctioned to

him.

2. Thereafter, the Government introduced

G.O.(Ms).No.408, Finance dated 25.08.2009, whereby, the period of

one and half a year for which the employee was working on a daily

basis or on consolidated pay before the date of regularization was

included for calculation of pension. Effectively not the entire period

would be calculated but one half of that period would be calculated.

Consequent to introduction of G.O.(Ms).No.408 dated 25.08.2009,

the pension rules had also been amended bringing in Rule 11 (4) in

conformity with the aforementioned Rule.

3. Pension Rule 11(4) is as follows:-

"(4) Half of the service rendered under the

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W.P.No.10530 of 2018

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 shall be counted for retirement benefits along with regular service, subject to the following conditions, namely:-

(i) service rendered in non-provincialised service, 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 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 wages basis shall be followed by absorption in regular service before 1st April 2003 without a break"

4. The only issue which turns around for interpretation was

about the entitlement of the petitioner herein.

5. Since it had been contended by the respondents that

the petitioner was working as part time in the post of B-II Class

Siddha Doctor, it was therefore contended that the aforementioned

Government Order would not apply to the petitioner herein and,

therefore, he was not entitled for consideration of 50% of the

number of years which he worked prior to his regularization. He was

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W.P.No.10530 of 2018

brought into regular service only on 01.10.1984. The other

contention raised by the respondents is the issue of delay which

probably was on the basis of the financial commitment which would

be incurred on the respondents.

6. Let me address the second issue first. It is made clear

that G.O.No.408 (Finance) Pension Department, which had been

introduced on 25.08.2009, can be applied only prospectively and,

therefore, there cannot be any arrears or re-calculation of the pay

structure of the petitioner but only from 25.08.2009 for the period

in which he was working as, according to the respondents, part

time, one half of that service alone will be taken into consideration

at the rate of salary which was paid at that particular time.

7. The second issue which has to be addressed is the

classification of the work as part time prior to regularization. I am

quite fortunate in that particular aspect since there is series of

judgments which have addressed this very issue and have declared

that those who already worked before regularization as B – II Class

Siddha Doctor could not be termed as part time workers but as full

time workers.

8. One judgment is the judgment in W.A.No.608 of 2019

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W.P.No.10530 of 2018

by a Division Bench judgment of this Court dated 01.04.2019 in the

State of Tamil Nadu Rep. By its Sec. Rural Development

Department and others v G.Salomi. Even in that particular case,

when application of G.O.No.408, Finance (Pension) Department

dated 25.08.2009 was put to question.

9. It was contended by the respondents therein that the

writ petitioner therein was on part time basis. He was Rural Medical

Officer prior to 01.10.1984. It was contended that since that service

was part time, the Government Order No.408 or pension Rules,

Rule 11 (4) would not be applicable to him. However, the Division

Bench had held otherwise and had very categorically stated that

though even categorization of any employee as part time would not

come to the rescue of the respondents and they would be bound to

pay pension for one and half services rendered prior to

regularization on 01.10.1984. After examining a catena of decisions,

the Division Bench finally held as follows:-

“10. In the light of the clear findings in the earlier decisions of this Court referred supra and in the absence of any materials placed before this Court to the contrary, it is not possible to accept the self~serving claim of the Respondents that the services of the Rural Medical Officers like the Petitioner prior to 01.10.1984 were engaged on part time basis.

We must also point out here that the Hon'ble Supreme Court of India in State of Uttar

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W.P.No.10530 of 2018

Pradesh vs Arvind Kumar Srivastava [(2015) 1 SCC 347] has reiterated that when a particular set of employees have been given relief by the Court, all other identically situated employees should be treated alike by extending that benefit and not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. In view of the aforesaid dictum, the Petitioner is entitled to the same benefit, which has been granted in respect of similarly placed persons in the decisions referred supra.

11. The order passed by the Writ Court is in consonance with the earlier orders passed by the Division Benches of this Court and we do not find any reason to differ from the same.”

10. Thus, the writ appeal filed was dismissed and it directed

that the benefit of G.O.No.408, Finance (Pension) Department dated

25.08.2009 should be extended to the respondent therein / writ

petitioners.

11. Since the issue is no longer res integra, I have extracted

only the defining portion of the aforementioned judgment in the writ

appeal. But it is to be noted that the said conclusion was based on

the catena of judgments namely (i) A.Muthuselvam v State of Tamil

Nadu [W.P.No.30003 of 2004 etc batch dated 19.04.2006], (ii)

J.Krishnamoorthy v State of Tamil Nadu [W.A.No.922 of 1995 dated

01.02.1996] and (iii) The Assistant Director, Local Fund Audit

Department v K.Dhanapalan [W.A.No.1618 of 2012 dated